CONFORMED VERSION – AMENDMENT AND JOINDER REVOLVER CUSIP # 09182EAB6 TERM CUSIP # 09182EAC4 CUSTOMER CUSIP # 09182EAA8 $200,000,000.00120,000,000.00 REVOLVING CREDIT FACILITY $50,000,000 TERM LOAN FACILITY CREDIT AGREEMENT by and among BLACK BOX...
CONFORMED VERSION – AMENDMENT AND JOINDER
REVOLVER CUSIP # 00000XXX0
TERM CUSIP # 00000XXX0
CUSTOMER CUSIP # 00000XXX0
$200,000,000.00120,000,000.00 REVOLVING CREDIT FACILITY
$50,000,000 TERM LOAN FACILITY
CREDIT AGREEMENT
by and among
BLACK BOX CORPORATION
as the Borrower
and
THE GUARANTORS PARTY HERETO
and
THE LENDERS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent
and
BANK OF AMERICA, N.A., as Syndication Agent
and
PNC CAPITAL MARKETS LLC and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, as Joint Lead Arrangers and Joint Bookrunners
Dated as of May 9, 2016
As amended August 9, 2017
(i)
TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS ..................................................................................................... 1
1.1 Certain Definitions. .......................................................................................................... 1
1.2 Construction. ............................................................................................................. 31 33
1.3 Accounting Principles; Changes in GAAP. .............................................................. 31 34
1.4 Currency Calculations ................................................................................................ 3234
2. REVOLVING CREDIT AND, SWING LOAN AND TERM LOAN FACILITIES ....... 3235
2.1 Revolving Credit Commitments. .............................................................................. 32 35
2.1.1 Revolving Credit Loans; Optional Currency Loans. ......................................... 32 35
2.1.2 Swing Loan Commitment. ................................................................................. 33 35
2.1.3 Term Loan Commitments ....................................................................................... 35
2.2 Nature of Lenders' Obligations with Respect to Revolving Credit Loans. .... 33 and Term
Loans .............................................................................................................................. 35
2.2.1 Revolving Credit Loans .......................................................................................... 35
2.2.2 Term Loans ............................................................................................................. 36
2.3 Commitment Fees. .................................................................................................... 33 36
2.4 Termination or Reduction of Revolving Credit Commitments. ................................ 34 36
2.5 Revolving Credit Loan Requests; Swing Loan Requests.......................................... 34 37
2.5.1 Revolving Credit Loan Requests. ...................................................................... 34 37
2.5.2 Swing Loan Requests. ........................................................................................ 35 38
2.6 Making Revolving Credit Loans and Swing Loans; Presumptions by the Administrative
Agent; Repayment of Revolving Credit Loans and the Term Loan; Borrowings to Repay
Swing Loans; Designated Lenders............................................................................ 35 38
2.6.1 Making Revolving Credit Loans. ....................................................................... 35 38
2.6.2 Presumptions by the Administrative Agent. ...................................................... 36 39
2.6.3 Making Swing Loans. ........................................................................................ 36 39
2.6.4 Repayment of Revolving Credit Loans. ............................................................. 36 39
2.6.5 Borrowings to Repay Swing Loans. .................................................................. 36 39
2.6.6 Swing Loans Under Cash Management Agreements. ....................................... 37 40
2.6.7 Repayment of Term Loans...................................................................................... 40
2.6.8 Designated Lenders. ........................................................................................... 37 40
2.7 Notes.......................................................................................................................... 38 41
2.8 Use of Proceeds. ........................................................................................................ 38 41
2.9 Letter of Credit Subfacility. ...................................................................................... 38 41
2.9.1 Issuance of Letters of Credit. ............................................................................. 38 41
2.9.2 Letter of Credit Fees. ......................................................................................... 39 42
2.9.3 Disbursements, Reimbursement. ....................................................................... 40 43
2.9.4 Repayment of Participation Advances. .............................................................. 41 44
2.9.5 Documentation. .................................................................................................. 42 45
2.9.6 Determinations to Honor Drawing Requests. .................................................... 42 45
2.9.7 Nature of Participation and Reimbursement Obligations. ................................. 42 45
2.9.8 Indemnity. .......................................................................................................... 44 47
(ii)
2.9.9 Liability for Acts and Omissions. ...................................................................... 44 47
2.9.10 Issuing Lender Reporting Requirements. .......................................................... 45 48
2.10 Defaulting Lenders. ................................................................................................... 45 48
2.11 Utilization of Commitments in Optional Currencies. ............................................... 47 50
2.11.1 Periodic Computations of Dollar Equivalent Amounts of Revolving Credit Loans
that are Optional Currency Loans and Letters of Credit Outstanding; Repayment in
Same Currency. ................................................................................................. 47 50
2.11.2 European Monetary Union. ................................................................................ 47 51
2.12 Increase in Revolving Credit Commitments. ............................................................ 48 51
2.12.1 Increasing Lenders and New Lenders. .................................................................... 48
2.12.2 Treatment of Outstanding Loans. ........................................................................... 49
3. INTEREST RATES .......................................................................................................... 5052
3.1 Interest Rate Options. ................................................................................................ 50 52
3.1.1 Revolving Credit Interest Rate Options. ............................................................ 50 52
3.1.2 Term Loan Interest Rate Options ............................................................................ 52
3.1.3 Swing Loan Interest Rate Options ...................................................................... 5152
3.1.33.1.4 ................................................................................. Rate Calculations; Rate Quotations
............................................................................................................................ 5153
3.2 Interest Periods. ......................................................................................................... 51 53
3.2.1 Amount of Borrowing Tranche. ......................................................................... 51 53
3.2.2 Renewals. ........................................................................................................... 51 53
3.2.3 No Conversion of Optional Currency Loans. .................................................... 51 53
3.3 Interest After Default. ............................................................................................... 51 53
3.3.1 Letter of Credit Fees, Interest Rate. ................................................................... 51 53
3.3.2 Other Obligations. .............................................................................................. 52 53
3.3.3 Acknowledgment. .............................................................................................. 52 54
3.4 Rates Unascertainable; Illegality; Increased Costs; Deposits Not Available; Optional
Currency Not Available. ........................................................................................... 52 54
3.4.1 Unascertainable. ................................................................................................. 52 54
3.4.2 Illegality; Increased Costs. ................................................................................. 52 54
3.4.3 Optional Currency Not Available. ..................................................................... 52 54
3.4.4 Administrative Agent's and Lender's Rights. ..................................................... 53 55
3.5 Selection of Interest Rate Options. ............................................................................ 53 55
4. PAYMENTS ..................................................................................................................... 5456
4.1 Payments. .................................................................................................................. 54 56
4.2 Pro Rata Treatment of Lenders. ................................................................................ 54 56
4.3 Sharing of Payments by Lenders. .............................................................................. 55 56
4.4 Presumptions by Administrative Agent. ................................................................... 55 57
4.5 Interest Payment Dates. ............................................................................................. 56 57
4.6 Voluntary Prepayments. ............................................................................................ 56 58
4.6.1 Right to Prepay. ................................................................................................. 56 58
4.6.2 Replacement of a Lender. .................................................................................. 57 59
4.6.3 Designation of a Different Lending Office. ....................................................... 57 59
4.7 Mandatory Prepayments. ........................................................................................... 58 60
4.7.1 Currency Fluctuations. ....................................................................................... 58 60
(iii)
4.7.2 Consolidated Cash Balance..................................................................................... 60
4.7.3 Asset Sales and Recovery Events ........................................................................... 60
4.7.4 Additional Indebtedness.......................................................................................... 60
4.7.5 Additional Equity .................................................................................................... 61
4.7.6 Excess Cash Flow ................................................................................................... 61
4.7.7 Application Among Loans and Interest Rate Options. ...................................... 58 61
4.8 Increased Costs. ......................................................................................................... 58 61
4.8.1 Increased Costs Generally.................................................................................. 58 61
4.8.2 Capital Requirements. ........................................................................................ 59 62
4.8.3 Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of
New Loans. ........................................................................................................ 59 62
4.8.4 Delay in Requests. ............................................................................................. 59 63
4.8.5 Additional Reserve Requirements. .................................................................... 59 63
4.9 Taxes. ........................................................................................................................ 60 63
4.9.1 Issuing Lender. ................................................................................................... 60 63
4.9.2 Payments Free of Taxes. .................................................................................... 60 63
4.9.3 Payment of Other Taxes by the Loan Parties..................................................... 60 64
4.9.4 Indemnification by the Loan Parties. ................................................................. 60 64
4.9.5 Indemnification by the Lenders. ........................................................................ 61 64
4.9.6 Evidence of Payments. ....................................................................................... 61 64
4.9.7 Status of Lenders................................................................................................ 61 64
4.9.8 Treatment of Certain Refunds. ........................................................................... 63 66
4.9.9 Survival. ............................................................................................................. 64 67
4.10 Indemnity. ................................................................................................................. 64 67
4.11 Settlement Date Procedures. ..................................................................................... 64 68
4.12 Currency Conversion Procedures for Judgments. ..................................................... 65 68
4.13 Indemnity in Certain Events. ..................................................................................... 65 68
5. REPRESENTATIONS AND WARRANTIES................................................................. 6569
5.1 Representations and Warranties. ............................................................................... 65 69
5.1.1 Organization and Qualification; Power and Authority; Compliance With Laws; Title
to Properties; Event of Default. ......................................................................... 65 69
5.1.2 Subsidiaries; Investment Companies. ................................................................ 66 69
5.1.3 Validity and Binding Effect. .............................................................................. 66 70
5.1.4 No Conflict; Material Agreements; Consents. ................................................... 66 70
5.1.5 Litigation. ........................................................................................................... 67 70
5.1.6 Financial Statements. ......................................................................................... 67 70
5.1.7 Margin Stock. ..................................................................................................... 68 71
5.1.8 Full Disclosure. .................................................................................................. 68 71
5.1.9 Taxes. ................................................................................................................. 68 72
5.1.10 Patents, Trademarks, Copyrights, Licenses, Etc. ................................................ 6872
5.1.11 Liens in the Collateral. ....................................................................................... 69 72
5.1.12 Insurance. ........................................................................................................... 69 72
5.1.13 ERISA Compliance. ........................................................................................... 69 72
5.1.14 Environmental Matters....................................................................................... 70 73
5.1.15 Solvency. ............................................................................................................ 70 73
5.1.16 Anti-Terrorism Laws. ........................................................................................ 70 73
(iv)
5.2 Updates to Schedules; Designation of Immaterial Domestic Subsidiaries; Removal of
Immaterial Domestic Subsidiaries. ............................................................................ 7073
5.2.1 Updates to Schedules. ........................................................................................ 70 73
5.2.2 Designation of Immaterial Domestic Subsidiaries. ........................................... 70 74
5.2.3 Removal of Immaterial Domestic Subsidiaries. ................................................ 71 74
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT ............. 7174
6.1 First Loans and Letters of Credit............................................................................... 71 74
6.1.1 Deliveries. .......................................................................................................... 71 74
6.1.2 Payment of Fees and Expenses. ......................................................................... 73 75
6.2 Each Loan or Letter of Credit. .................................................................................. 73 75
7. COVENANTS .................................................................................................................. 7376
7.1 Affirmative Covenants. ............................................................................................. 73 76
7.1.1 Preservation of Existence, Etc. ........................................................................... 7376
7.1.2 Payment of Liabilities, Including Taxes, Etc. ..................................................... 7476
7.1.3 Maintenance of Insurance. ................................................................................. 74 77
7.1.4 Maintenance of Properties and Leases. .............................................................. 74 77
7.1.5 Visitation Rights. ............................................................................................... 74 77
7.1.6 Keeping of Records and Books of Account. ...................................................... 74 77
7.1.7 Compliance with Laws; Use of Proceeds. ......................................................... 75 77
7.1.8 Further Assurances............................................................................................. 75 78
7.1.9 Anti-Terrorism Laws; International Trade Law Compliance. ........................... 75 78
7.1.10 Keepwell. ........................................................................................................... 75 78
7.1.11 Immaterial Domestic Subsidiaries. ......................................................................... 76
7.1.12 Treasury Management. ...................................................................................... 76 79
7.1.12 Financial Advisor .................................................................................................... 79
7.2 Negative Covenants................................................................................................... 76 79
7.2.1 Indebtedness. ...................................................................................................... 76 79
7.2.2 Liens; Lien Covenants. ...................................................................................... 77 80
7.2.3 Guaranties. ......................................................................................................... 77 81
7.2.4 Loans and Investments. ...................................................................................... 78 81
7.2.5 Dividends and Related Distributions. ................................................................ 79 82
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions. ....................................... 79 82
7.2.7 Dispositions of Assets or Subsidiaries. .............................................................. 81 83
7.2.8 Affiliate Transactions......................................................................................... 82 84
7.2.9 Subsidiaries and Joint Ventures. ........................................................................ 82 84
7.2.10 Continuation of or Change in Business. ............................................................ 83 85
7.2.11 Fiscal Year. ........................................................................................................ 83 85
7.2.12 Changes in Organizational Documents. ............................................................. 83 85
7.2.13 Maximum Leverage Ratio. ................................................................................ 83 85
7.2.14 Minimum InterestFixed Charge Coverage Ratio. .............................................. 84 85
7.2.15 Minimum Consolidated EBITDA ........................................................................... 85
7.2.16 Maximum Capital Expenditures ............................................................................. 85
7.2.17 Limitation on Negative Pledges. ........................................................................ 84 86
7.3 Reporting Requirements. ........................................................................................... 84 86
7.3.1 QuarterlyInterim Financial Statements. ............................................................. 84 86
(v)
7.3.2 Annual Financial Statements. ............................................................................ 85 87
7.3.3 Consolidating Segment Reports. ........................................................................ 85 87
7.3.4 Certificate of the Borrower. ............................................................................... 85 88
7.3.5 Other Financial Reports .......................................................................................... 88
7.3.6 Notices. .............................................................................................................. 85 88
8. DEFAULT ........................................................................................................................ 8789
8.1 Events of Default. ...................................................................................................... 87 89
8.1.1 Payments Under Loan Documents..................................................................... 87 89
8.1.2 Breach of Warranty. ........................................................................................... 87 89
8.1.3 Anti-Terrorism Laws. ........................................................................................ 87 90
8.1.4 Breach of Negative Covenants, Visitation Rights or, Anti-Terrorism Laws. .... 87 90
8.1.5 Breach of Other Covenants. ............................................................................... 87 90
8.1.6 Defaults in Other Agreements or Indebtedness. ................................................ 87 90
8.1.7 Final Judgments or Orders. ................................................................................ 88 90
8.1.8 Loan Document Unenforceable. ........................................................................ 88 90
8.1.9 Uninsured Losses; Proceedings Against Assets. ............................................... 88 90
8.1.10 Events Relating to Pension Plans and Multiemployer Plans. ............................ 88 91
8.1.11 Change of Control. ............................................................................................. 88 91
8.1.12 Relief Proceedings. ............................................................................................ 88 91
8.2 Consequences of Event of Default. ........................................................................... 88 91
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization
Proceedings. ...................................................................................................... 88 91
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings. .................................. 89 91
8.2.3 Set-off. ............................................................................................................... 89 92
8.2.4 Enforcement of Rights and Remedies. ............................................................... 89 92
8.2.5 Application of Proceeds. .................................................................................... 90 92
9. THE ADMINISTRATIVE AGENT ................................................................................. 9194
9.1 Appointment and Authority. ..................................................................................... 91 94
9.2 Rights as a Lender. .................................................................................................... 91 94
9.3 Exculpatory Provisions. ............................................................................................ 91 94
9.4 Reliance by Administrative Agent. ........................................................................... 92 95
9.5 Delegation of Duties.................................................................................................. 93 95
9.6 Resignation of Administrative Agent. ....................................................................... 93 96
9.7 Non-Reliance on Administrative Agent and Other Lenders. .................................... 94 96
9.8 No Other Duties, etc. ................................................................................................. 94 97
9.9 Administrative Agent's Fee. ...................................................................................... 94 97
9.10 Authorization to Release Collateral and Guarantors. ................................................ 94 97
9.11 No Reliance on Administrative Agent's Customer Identification Program. ............. 95 97
10. MISCELLANEOUS ......................................................................................................... 9597
10.1 Modifications, Amendments or Waivers. ................................................................. 95 97
10.1.1 Increase of Commitment. ................................................................................... 95 98
10.1.2 Extension of Payment; Reduction of Principal, Interest or Fees; Modification of
Terms of Payment. ............................................................................................ 95 98
10.1.3 Release of Collateral or Guarantor. ................................................................... 95 98
(vi)
10.1.4 Miscellaneous. ................................................................................................... 96 98
10.2 No Implied Waivers; Cumulative Remedies. ............................................................ 96 99
10.3 Expenses; Indemnity; Damage Waiver. .................................................................... 96 99
10.3.1 Costs and Expenses. ........................................................................................... 96 99
10.3.2 Indemnification by the Borrower. ...................................................................... 97 99
10.3.3 Reimbursement by Lenders. ............................................................................ 97 100
10.3.4 Waiver of Consequential Damages, Etc. .......................................................... 98100
10.3.5 Payments. ......................................................................................................... 98 101
10.4 Holidays. ................................................................................................................. 98 101
10.5 Notices; Effectiveness; Electronic Communication. ............................................... 98 101
10.5.1 Notices Generally............................................................................................. 98 101
10.5.2 Electronic Communications. ............................................................................ 99 101
10.5.3 Change of Address, Etc.................................................................................... 99 102
10.6 Severability.............................................................................................................. 99 102
10.7 Duration; Survival. .................................................................................................. 99 102
10.8 Successors and Assigns. ........................................................................................ 100 102
10.8.1 Successors and Assigns Generally. ................................................................ 100 102
10.8.2 Assignments by Lenders. ............................................................................... 100 103
10.8.3 Register. ......................................................................................................... 102 104
10.8.4 Participations.................................................................................................. 102 104
10.8.5 Certain Pledges; Successors and Assigns Generally. .................................... 103 106
10.9 Confidentiality. ...................................................................................................... 103 106
10.9.1 General. .......................................................................................................... 103 106
10.9.2 Sharing Information With Affiliates of the Lenders. ..................................... 104 106
10.10 Counterparts; Integration; Effectiveness. .............................................................. 104 106
10.10.1 Counterparts; Integration; Effectiveness. ....................................................... 104 106
10.11 CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE;
SERVICE OF PROCESS; WAIVER OF JURY TRIAL. .................................... 104 107
10.11.1 Governing Law. ............................................................................................. 104 107
10.11.2 SUBMISSION TO JURISDICTION. ............................................................ 104 107
10.11.3 WAIVER OF VENUE. .................................................................................. 105 108
10.11.4 SERVICE OF PROCESS. ............................................................................. 105 108
10.11.5 WAIVER OF JURY TRIAL. ......................................................................... 105 108
10.12 USA Patriot Act Notice. ........................................................................................ 106 108
10.13 Acknowledgement and Consent to Bail-In of EEA Financial Institutions Contractual
Recognition of Bail-In. ......................................................................................... 106 108
10.14 No Advisory or Fiduciary Responsibility. ............................................................ 106 109
10.15 Joinder of Guarantors. ........................................................................................... 107 109
10.16 Release of Collateral Securing the Obligations............................................................ 107
(vii)
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A) - PRICING GRID
SCHEDULE 1.1(B) - COMMITMENTS OF LENDERS AND ADDRESSES FOR
NOTICES
SCHEDULE 1.1(D) - DISREGARDED DOMESTIC SUBSIDIARIES
SCHEDULE 1.1(E) - EXISTING LETTERS OF CREDIT
SCHEDULE 1.1(I) - IMMATERIAL DOMESTIC SUBSIDIARIES
SCHEDULE 1.1(P) - PERMITTED LIENS
SCHEDULE 5.1.2 - SUBSIDIARIES
SCHEDULE 7.1.3 - INSURANCE REQUIREMENTS RELATING TO
COLLATERAL
SCHEDULE 7.2.1 - PERMITTED INDEBTEDNESS
SCHEDULE 7.2.4 - PERMITTED LOANS OR INVESTMENTS
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER
EXHIBIT 1.1(G)(2) - GUARANTY AGREEMENT
EXHIBIT 1.1(I) - INTERCOMPANY SUBORDINATION AGREEMENT
EXHIBIT 1.1(N)(1) - REVOLVING CREDIT NOTE
EXHIBIT 1.1(N)(2) - SWING LOAN NOTE
EXHIBIT 1.1(N)(3) - TERM LOAN NOTE
EXHIBIT 1.1(P)(1) - PATENT, TRADEMARK AND COPYRIGHT SECURITY
AGREEMENT
EXHIBIT 1.1(P)(2) - PLEDGE AGREEMENT
EXHIBIT 1.1(S) - SECURITY AGREEMENT
EXHIBIT 2.5.1 - LOAN REQUEST
EXHIBIT 2.5.2 - SWING LOAN REQUEST
EXHIBIT 4.9.7(A) - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT 4.9.7(B) - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign
Participants That Are Not Partnerships For U.S. Federal Income
Tax Purposes)
EXHIBIT 4.9.7(C) - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign
Participants That Are Partnerships For U.S. Federal Income Tax
Purposes)
EXHIBIT 4.9.7(D) - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT 7.2.6 - ACQUISITION COMPLIANCE CERTIFICATE
EXHIBIT 7.3.4 - QUARTERLY COMPLIANCE CERTIFICATE
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of May 9, 20162016, as amended
August 9, 2017, and is made by and among BLACK BOX CORPORATION, a Delaware
corporation (the "Borrower"), each of the GUARANTORS (as hereinafter defined), the
LENDERS (as hereinafter defined), and PNC BANK, NATIONAL ASSOCIATION, in its
capacity as administrative agent for the Lenders under this Agreement (hereinafter referred
to in such capacity as the "Administrative Agent").
The Borrower has requested the Lenders to provide a (i) revolving credit facility to
the Borrower in an aggregate principal amount not to exceed, subject to Section 2.12
[Increase in Revolving Credit Commitments], Two Hundred One Hundred Twenty Million
and 00/100 Dollars ($200,000,000.00)120,000,000.00) and (ii) a Fifty Million and 00/100
Dollar ($50,000,000.00) term loan facility. In consideration of their mutual covenants and
agreements hereinafter set forth and intending to be legally bound hereby, the parties
hereto covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions. In addition to words and terms defined elsewhere in
this Agreement, the following words and terms shall have the following meanings,
respectively, unless the context hereof clearly requires otherwise:
Administrative Agent shall mean PNC Bank, National Association, and its
successors and assigns, in its capacity as administrative agent hereunder.
Administrative Agent's Fee shall have the meaning specified in Section 9.9
[Administrative Agent's Fee].
Administrative Agent's Letter shall have the meaning specified in Section
9.9 [Administrative Agent's Fee].
Affiliate as to any Person shall mean any other Person (i) which directly or
indirectly controls, is controlled by, or is under common control with such Person, (ii)
which beneficially owns or holds ten percent (10%) or more of any class of the voting or
other equity interests of such Person, or (iii) ten percent (10%) or more of any class of
voting interests or other equity interests of which is beneficially owned or held, directly or
indirectly, by such Person; provided, however, no Person shall be deemed to be an Affiliate
of Borrower or its Subsidiaries solely due to the ownership of ten percent (10%) or more of
any class of voting equity of Borrower. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
Agreement shall mean this Credit Agreement, as the same may be amended,
supplemented, modified or restated from time to time, including all schedules and exhibits.
2
Alternate Currency shall mean with respect to any Letter of Credit, each
Optional Currency, Brazilian Real, South Korean Won, Taiwanese Dollars and any other
non-Dollar currency satisfactory to the Issuing Lender that shall issue a Letter of Credit.
Subject to Section 2.11.2 [European Monetary Union], each Alternate Currency must be
the lawful currency of the specified country.
Anti-Terrorism Laws shall mean any Laws relating to terrorism, trade
sanctions programs and embargoes, import/export licensing, money laundering or bribery,
and any regulation, order, or directive promulgated, issued or enforced pursuant to such
Laws, all as amended, supplemented or replaced from time to time.
Applicable Commercial Letter of Credit Fee Rate shall mean the percentage
rate per annum based on the Leverage Ratio then in effect according to the pricing grid on
Schedule 1.1(A) below the heading "Commercial Letter of Credit Fee."
Applicable Commitment Fee Rate shall mean the percentage rate per
annum based on the Leverage Ratio then in effect according to the pricing grid on Schedule
1.1(A) below the heading "Commitment Fee."
Applicable Margin shall mean, as applicable:
(i) the percentage spread to be added to the Base Rate applicable to
Revolving Credit Loans under the Base Rate Option based on the Leverage Ratio then in
effect according to the pricing grid on Schedule 1.1(A) below the heading "Revolving
Credit Base Rate Spread", or
(ii) the percentage spread to be added to the Euro-Rate applicable to
Revolving Credit Loans under the Euro-Rate Option based on the Leverage Ratio then in
effect according to the pricing grid on Schedule 1.1(A) below the heading "Revolving
Credit Euro-Rate Spread", or.
Applicable Standby Letter of Credit Fee Rate shall mean the percentage rate
per annum based on the Leverage Ratio then in effect according to the pricing grid on
Schedule 1.1(A) below the heading "Standby Letter of Credit Fee."
Approved Fund shall mean any fund that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the ordinary course of
business and that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or
(iii) an entity or an Affiliate of an entity that administers or manages a Lender.
Asset Sale shall mean any disposition or series of dispositions by any Loan
Party or any of its Subsidiaries of the type described in clauses (iv) through (viii) of Section
7.2.7 [Dispositions of Assets or Subsidiaries].
Assignment and Assumption Agreement shall mean an assignment and
assumption agreement entered into by a Lender and an assignee permitted under Section
10.8 [Successors and Assigns], in substantially the form of Exhibit 1.1(A).
3
Australian Dollars shall mean the official currency of Australia.
Authorized Officer shall mean, with respect to any Loan Party, the Chief
Executive Officer, President, Chief Financial Officer, Treasurer or Assistant Treasurer of
such Loan Party, any other executive officer, including any Executive Vice President or
Senior Vice President of such Loan Party, any Vice President of any Subsidiary of
Borrower, any manager or the members (as applicable) in the case of any Loan Party which
is a limited liability company, or such other individuals, designated by written notice to the
Administrative Agent from the Borrower, authorized to execute notices, reports and other
documents on behalf of such Loan Party required hereunder. The Borrower may amend
such list of individuals from time to time by giving written notice of such amendment to the
Administrative Agent.
Bail-In Action shall mean the exercise of any Write-Down and Conversion
Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA
Financial Institution.
Bail-In Legislation shall mean, with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the
Council of the European Union, the implementing law for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule.
Base Rate shall mean, for any day, a fluctuating per annum rate of interest
equal to the highest of (i) the Federal Funds Open Rate, plus fifty (50) basis points (0.5%),
(ii) the Prime Rate, and (iii) the Daily LIBOR Rate, plus 100 basis points (1.0%). Any
change in the Base Rate (or any component thereof) shall take effect at the opening of
business on the day such change occurs. Notwithstanding the foregoing, if the Base Rate
as determined above would be less than zero (0.00), such rate shall be deemed to be zero
(0.00) for purposes of this Agreement.
Base Rate Option shall mean the option of the Borrower to have Loans bear
interest at the rate and under the terms set forth in either Section 3.1.1(i) [Revolving Credit
Base Rate Options] or Section 3.1.2(i) [Term Facility Base Rate Option], as applicable.
Borrower shall have the meaning specified in the introductory paragraph.
Borrowing Date shall mean, with respect to any Loan, the date for the
making thereof or the renewal or conversion thereof at or to the same or a different Interest
Rate Option, which shall be a Business Day.
Borrowing Tranche shall mean specified portions of Loans outstanding as
follows: (i) any Loans to which a Euro-Rate Option applies which are in Dollars or in the
same Optional Currency advanced under the same Loan Request by the Borrower and
which have the same Interest Period shall constitute one Borrowing Tranche, and (ii) all
Loans to which a Base Rate Option applies shall constitute one Borrowing Tranche.
Brazilian Real shall mean the official currency of Brazil.
4
British Pounds Sterling shall mean the official currency of the United
Kingdom of Great Britain and Northern Ireland.
Budget means a rolling thirteen (13) week cash flow projection (including,
without limitation, projected expenses, collections, disbursements, borrowing availability,
loan balances and a breakdown of the amount of the Consolidated Cash Balance of the
Borrower and all of the Domestic Subsidiaries and the Consolidated Cash Balance of all of
the Foreign Subsidiaries) of the Loan Parties and their Subsidiaries, on a consolidated
basis, prepared and approved by the Borrower's management in consultation with
Borrower's Financial Advisor, in form and substance satisfactory to the Administrative
Agent, together with all amendments, supplements, and any other modifications thereto
that are agreed to by the Administrative Agent in writing from time to time.
Business Day shall mean any day other than a Saturday or Sunday or a legal
holiday on which commercial banks are authorized or required to be closed for business in
Pittsburgh, Pennsylvania and if the applicable Business Day relates to any Loan to which
the Euro-Rate Option applies, such day must also be a day on which dealings are carried on
in the Relevant Interbank Market.
Canadian Dollars shall mean the official currency of Canada.
Capital Expenditures means expenditures made or liabilities incurred for
the acquisition of any fixed assets or improvements (or of any replacements or
substitutions thereof or additions thereto) which have a useful life of more than one year
and which, in accordance with GAAP, would be classified as capital expenditures.
Capital Lease shall mean, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such Person that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet of such
Person and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP (subject to Section 1.3 [Accounting Principles;
Changes in GAAP]).
Capital Stock shall mean any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all warrants, rights
or options to purchase any of the foregoing.
Cash Equivalents shall mean: (a) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any agency
thereof and backed by the full faith and credit of the United States, in each case maturing
within six (6) months from the date of acquisition thereof; (b) commercial paper maturing
no more than six (6) months from the date issued and, at the time of acquisition, having a
rating of at least A-1 from Standard & Poor's or at least P-1 from Xxxxx'x Investors
Service, Inc.; and (c) certificates of deposit or bankers' acceptances maturing within six (6)
months from the date of issuance thereof issued by, or overnight reverse repurchase
agreements from any commercial bank organized under the laws of the United States of
5
America, or any state thereof or the District of Columbia, whose obligations are rated A-1,
A or the equivalent or better by Standard & Poor's on the date of acquisition and not subject
to setoff rights in favor of such bank.
Cash Management Agreements shall have the meaning specified in Section
2.6.6 [Swing Loans Under Cash Management Agreements].
CDOR Rate shall have the meaning assigned to such term in the definition
of Euro-Rate.
CEA shall mean the Commodity Exchange Act (7 U.S.C.§1 et seq.), as
amended from time to time, and any successor statute.
CFTC shall mean the Commodity Futures Trading Commission.
Change in Law shall mean the occurrence, after the date of this Agreement,
of any of the following: (i) the adoption or taking effect of any Law, (ii) any change in any
Law or in the administration, interpretation, implementation or application thereof by any
Official Body or (iii) the making or issuance of any request, rule, guideline or directive
(whether or not having the force of Law) by any Official Body; provided that
notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform
and Consumer Protection Act and all requests, rules, regulations, guidelines,
interpretations or directives thereunder or issued in connection therewith (whether or not
having the force of Law) and (y) all requests, rules, regulations, guidelines, interpretations
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 (whether or not having the force of Law), in each case
pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the
date enacted, adopted, issued, promulgated or implemented.
Change of Control shall mean any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), shall become, or obtain rights (whether by means or warrants, options
or otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of more than fifty percent (50%) of the
total voting power of the issued and outstanding Capital Stock of the Borrower.
CIP Regulations shall have the meaning specified in Section 9.11 [No
Reliance on Administrative Agent's Customer Identification Program].
Closing Compliance Certificate shall have the meaning specified in Section
6.1.1 [Deliveries].
Closing Date shall mean the Business Day on which the first Loan shall be
made, which shall be May 9, 2016.
6
Code shall mean the Internal Revenue Code of 1986, as the same may be
amended or supplemented from time to time, and any successor statute of similar import,
and the rules and regulations thereunder, as from time to time in effect.
Collateral shall mean the personal property of any Person granted as
collateral to secure the Obligations pursuant to the (i) Security Agreement (ii) Pledge
Agreement, or (iii) Patent, Trademark and Copyright Security Agreement.
Commercial Letter of Credit shall mean any letter of credit which is a
commercial letter of credit issued in respect of the purchase of goods or services by one or
more of the Loan Parties or their Subsidiaries in the ordinary course of business.
Commitment shall mean as to any Lender the aggregate of its Revolving
Credit Commitment (and, in the case of PNC, including its Swing Loan Commitment) and
Term Loan Commitment, and Commitments shall mean the aggregate of the Revolving
Credit Commitments and SwingTerm Loan CommitmentCommitments of all of the
Lenders.
Commitment Fee shall have the meaning specified in Section 2.3
[Commitment Fees].
Compliance Certificate shall have the meaning specified in Section 7.3.4
[Certificate of the Borrower].
Computation Date shall have the meaning specified in Section 2.11.1
[Periodic Computations of Dollar Equivalent amounts of Revolving Credit Loans and
Letters of Credit Outstanding, Etc.].
Connection Income Taxes shall mean Other Connection Taxes that are
imposed on or measured by net income (however denominated) or that are franchise Taxes
or branch profits Taxes.
Consideration shall mean with respect to any Permitted Acquisition,
without duplication, the aggregate of (i) the cash paid by any of the Loan Parties, directly
or indirectly, to the seller in connection therewith, (ii) the Indebtedness incurred or
assumed by any of the Loan Parties, whether in favor of the seller or otherwise and whether
fixed or contingent, in connection therewith, (iii) any Guaranty given or incurred by any
Loan Party in connection therewith, and (iv) any other consideration given or obligation
incurred by any of the Loan Parties in connection therewith.
Consolidated Cash Balance means, at any time, (a) the aggregate amount of
cash and cash equivalents, marketable securities, treasury bonds and bills, certificates of
deposit, investments in money market funds, commercial paper and Cash Equivalents, in
each case, held or owned by (either directly or indirectly), credited to the account of or
would otherwise be required to be reflected as an asset on the balance sheet of the
Borrower and its Subsidiaries less (b) the sum of (i) any restricted cash or Cash Equivalents
to pay royalty obligations, working interest obligations, suspense payments, severance
taxes, payroll, payroll taxes, other taxes, employee wage and benefit payments and trust
7
and fiduciary obligations or other obligations of the Borrower or any Subsidiary to third
parties and for which the Borrower or such Subsidiary has issued checks or has initiated
wires or ACH transfers (or will issue checks or initiate wires or ACH transfers within
fifteen (15) days in order to make such payments), (ii) funds of the Borrower and its
Domestic Subsidiaries which are being used to pay (or for which checks, wires or ACH
transfers will be initiated within fifteen (15) days in order pay) Indebtedness owed to
Foreign Subsidiaries, the payment of which will result in the repatriation of such funds
from the Foreign Subsidiaries to the Borrower and its Domestic Subsidiaries (such funds,
“Repatriation Funds”), and (iii) other amounts for which the Borrower or such Subsidiary
has issued checks or has initiated wires or ACH transfers but which have not yet been
subtracted from the balance in the relevant account of the Borrower or such Subsidiary.
Consolidated Cash Balance Threshold means Twenty Million and 00/100
Dollars ($20,000,000.00).
Consolidated EBITDA for any period of determination shall mean the
difference between (a) the sum of (xA) (i) net income, (ii) depreciation, (iii) amortization,
(iv) other non-cash charges, non-cash expenses or non-cash losses to net income
(excluding non-cash charges, expenses or losses that are expected to become cash charges,
expenses or losses in a future period or that are reserves for future cash charges, expenses
or losses), (v) interest expense and (vi) income tax expense, plus (yB) restructuring and
severance costs incurred prior to June 30, 2017March 31, 2018 in an aggregate amount not
to exceed Fifteen Million Seven Hundred Thousand and 00/100 Dollars
($15,000,000.00),15,700,000.00), plus (C) SAP Implementation Related Expenses that are
deducted (and not added back) in such period in computing net income, in an aggregate
amount for all periods of determination not to exceed Sixteen Million and 00/100 Dollars
($16,000,000.00), plus (D) expenses incurred in connection with the Borrower’s
engagement of the Financial Advisor in accordance with Section 7.1.12 [Financial
Advisor] minus (b) non-cash credits or gains to net income, in each case of the Borrower
and its Subsidiaries for such period determined and consolidated in accordance with
GAAP. For purposes of calculating Consolidated EBITDA, (i) items related to Joint
Ventures shall be excluded, except that cash dividends paid by any Joint Venture to the
Borrower or a wholly-owned Subsidiary of the Borrower shall be included in Consolidated
EBITDA, and (ii) (a) with respect to a business acquired by the Loan Parties pursuant to a
Permitted Acquisition, Consolidated EBITDA shall be calculated on a pro forma basis,
using historical numbers, in accordance with GAAP as if the Permitted Acquisition had
been consummated at the beginning of such period, and (b) with respect to a business
liquidated, sold or disposed of by the Loan Parties pursuant to Section 7.2.67.2.7
[Dispositions of Assets or Subsidiaries], Consolidated EBITDA shall be calculated on a
pro forma basis, using historical numbers, in accordance with GAAP as if such liquidation,
sale or disposition had been consummated at the beginning of such period.
Consolidated Fixed Charges means for any period of determination, the
sum of cash actually expended to make (a) interest payments, plus (b) federal, state, local
and foreign income tax payments, plus (c) dividends, distributions and stock repurchases,
plus (d) scheduled principal payments of the Term Loan plus (e) payments in respect of
obligations under Capital Leases, plus (f) payments with respect to any other Indebtedness
8
for borrowed money (including any subordinated indebtedness but excluding Revolving
Credit Loans), in each case of the Borrower and its Subsidiaries for such period determined
and consolidated in accordance with GAAP.
Consolidated Funded Debt shall mean, as of any date of determination, (i)
the principal balance of the Loans and all obligations of the Borrower and its Subsidiaries
for borrowed money (including, without limitation, obligations under Capital Leases), plus
(ii) (without duplication) contingent liabilities related to letters of credit and guaranties of
the Borrower and its Subsidiaries, plus (iii) net obligations (contingent or otherwise), but in
no event shall such net amount be a receivable to Borrower in excess of Zero and 00/100
Dollars ($0.00), under any Foreign Currency Hedge or Interest Rate Hedge, in each case of
the Borrower and its Subsidiaries determined and consolidated in accordance with GAAP;
provided however, that Consolidated Funded Debt shall exclude any xxxx to market
adjustment not requiring any actual cash payment or settlement. Additionally, for
clarification, no Indebtedness permitted by Section 7.2.1(x) [Indebtedness] shall be
included in this definition of Consolidated Funded Debt as borrowed money.
Covered Entity shall mean (a) the Borrower, each of Borrower's
Subsidiaries, all Guarantors and, if applicable, all pledgors of Collateral, and (b) each
Person that, directly or indirectly, is in control of a Person described in clause (a) above.
For purposes of this definition, control of a Person shall mean the direct or indirect (x)
ownership of, or power to vote, twenty-five percent (25%) or more of the issued and
outstanding equity interests having ordinary voting power for the election of directors of
such Person or other Persons performing similar functions for such Person, or (y) power to
direct or cause the direction of the management and policies of such Person whether by
ownership of equity interests, contract or otherwise.
Daily LIBOR Rate shall mean, for any day, the rate per annum determined
by the Administrative Agent as the Published Rate, as adjusted for any additional costs
pursuant to Section 4.8.5(ii) [Additional Reserve Requirements]. Notwithstanding the
foregoing, if the Daily LIBOR Rate as determined above would be less than zero (0.00),
such rate shall be deemed to be zero (0.00) for purposes of this Agreement.
Danish Krone shall mean the official currency of Denmark.
Defaulting Lender shall mean any Lender that (a) has failed, within two
Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans,
(ii) fund any portion of its participations in Letters of Credit or Swing Loans or (iii) pay
over to the Administrative Agent, the Issuing Lender, PNC (as the Swing Loan Lender) or
any Lender any other amount required to be paid by it hereunder, unless, in the case of
clause (i) above, such Lender notifies the Administrative Agent in writing that such failure
is the result of such Lender's good faith determination that a condition precedent to funding
(specifically identified and including the particular default, if any) has not been satisfied,
(b) has notified the Borrower or the Administrative Agent in writing, or has made a public
statement to the effect, that it does not intend or expect to comply with any of its funding
obligations under this Agreement (unless such writing or public statement indicates that
such position is based on such Lender's good faith determination that a condition precedent
9
(specifically identified and including the particular default, if any) to funding a loan under
this Agreement cannot be satisfied) or generally under other agreements in which it
commits to extend credit, (c) has failed, within two Business Days after request by the
Administrative Agent or the Borrower, acting in good faith, to provide a certification in
writing from an authorized officer of such Lender that it will comply with its obligations
(and is financially able to meet such obligations) to fund prospective Loans and
participations in then outstanding Letters of Credit and Swing Loans under this Agreement,
provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon the Administrative Agent's or the Borrower's receipt of such certification in form and
substance satisfactory to the Administrative Agent or the Borrower, as the case may be, (d)
has become the subject of a Bankruptcy Event or a Bail-In Action or (e) has failed at any
time to comply with the provisions of Section 4.3 [Sharing of Payments by Lenders] with
respect to purchasing participations from the other Lenders, whereby such Lender's share
of any payment received, whether by setoff or otherwise, is in excess of its Ratable Share
of such payments due and payable to all of the Lenders.
As used in this definition and in Section 2.10 [Defaulting Lenders], the term
"Bankruptcy Event" means, with respect to any Person, such Person or such Person's direct
or indirect parent company becoming the subject of a bankruptcy or insolvency
proceeding, or having had a receiver, conservator, trustee, administrator, custodian,
assignee for the benefit of creditors or similar Person charged with the reorganization or
liquidation of its business appointed for it, or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the
acquisition of any ownership interest, in such Person or such Person's direct or indirect
parent company by an Official Body or instrumentality thereof if, and only if, such
ownership interest does not result in or provide such Person with immunity from the
jurisdiction of courts within the United States or from the enforcement of judgments or
writs of attachment on its assets or permit such Person (or such Official Body or
instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements
made by such Person.
Designated Lender shall have the meaning specified in Section 2.6.72.6.8
[Designated Lenders].
Disregarded Domestic Subsidiary means any Domestic Subsidiary treated
as a disregarded entity for U.S. federal income tax purposes and the sole assets of which are
Subsidiary Equity Interests in one or more controlled foreign corporations within the
meaning of section 957 of the Code. The Disregarded Domestic Subsidiaries as of the First
Amendment Effective Date are listed on Schedule 1.1(D).
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of
the United States of America.
Dollar Equivalent shall mean, with respect to any amount of any currency,
as of any Computation Date, the Equivalent Amount of such currency expressed in Dollars.
10
Domestic Person shall mean an entity organized under the laws of any State
of the United States of America or the District of Columbia.
Domestic Subsidiary shall mean any Subsidiary of any Loan Party that is a
Domestic Person (other than any Disregarded Domestic Subsidiaries).
Drawing Date shall have the meaning specified in Section 2.9.3
[Disbursements, Reimbursement].
EEA Financial Institution shall mean (a) any credit institution or investment
firm established in any EEA Member Country which is subject to the supervision of an
EEA Resolution Authority, (b) any entity established in an EEA Member Country which is
a parent of an institution described in clause (a) of this definition, or (c) any financial
institution established in an EEA Member Country which is a subsidiary of an institution
described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
EEA Member Country shall mean any member state of the European
Union, Iceland, Liechtenstein and Norway.
EEA Resolution Authority shall mean any public administrative authority
or any person entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA Financial
Institution.
Effective Date means the date indicated in a document or agreement to be
the date on which such document or agreement becomes effective, or, if there is no such
indication, the date of execution of such document or agreement.
Eligibility Date shall mean, with respect to each Loan Party and each Swap,
the date on which this Agreement or any other Loan Document becomes effective with
respect to such Swap (for the avoidance of doubt, the Eligibility Date shall be the Effective
Date of such Swap if this Agreement or any other Loan Document is then in effect with
respect to such Loan Party, and otherwise it shall be the Effective Date of this Agreement
and/or such other Loan Document(s) to which such Loan Party is a party).
Eligible Contract Participant shall mean an "eligible contract participant" as
defined in the CEA and regulations thereunder.
Environmental Laws shall mean all applicable federal, state, local, tribal,
territorial and foreign Laws (including common law), constitutions, statutes, treaties,
regulations, rules, ordinances and codes and any consent decrees, settlement agreements,
judgments, orders, directives, policies or programs issued by or entered into with an
Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of
human health from exposure to regulated substances; (iii) protection of the environment
and/or natural resources; (iv) the presence, use, management, generation, manufacture,
processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging,
11
sale, transport, storage, collection, distribution, disposal or release or threat of release of
regulated substances; and (v) the presence of contamination.
Equivalent Amount shall mean, at any time, as determined by
Administrative Agent (which determination shall be conclusive absent manifest error),
with respect to an amount of any currency (the "Reference Currency") which is to be
computed as an equivalent amount of another currency (the "Equivalent Currency"), the
amount of such Equivalent Currency converted from such Reference Currency at
Administrative Agent's rate (based on the market rates then prevailing and available to
Administrative Agent) for such Equivalent Currency for such Reference Currency at a time
determined by Administrative Agent on the second Business Day immediately preceding
the event for which such calculation is made.
Equivalent Currency shall have the meaning specified in the definition of
"Equivalent Amount".
ERISA shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended or supplemented from time to time, and any successor statute
of similar import, and the rules and regulations thereunder, as from time to time in effect.
ERISA Event shall mean (a) with respect to a Pension Plan, a reportable
event under Section 4043 of ERISA as to which event (after taking into account notice
waivers provided for in the regulations or other applicable guidance that is intended to be
relied upon generally) there is a duty to give notice to the PBGC; (b) a withdrawal by
Borrower or any member of the ERISA Group from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a substantial cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by
Borrower or any member of the ERISA Group from a Multiemployer Plan if there is any
potential liability therefore, notification that a Multiemployer Plan is in reorganization, or
occurrence of an event described in Section 4041A(a) of ERISA that results in the
termination of a Multiemployer Plan; (d) the filing of a notice of intent to terminate a
Pension Plan (other than in a Standard Termination under Section 4041(b)), the treatment
of a Pension Plan amendment as a termination under Section 4041(e) of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon Borrower or any member of the ERISA Group.
ERISA Group shall mean, at any time, the Borrower and all members of a
controlled group of corporations and all trades or businesses (whether or not incorporated)
under common control and all other entities which, together with the Borrower, are treated
as a single employer under Section 414 of the Code or Section 4001(b)(1) of ERISA.
12
EU Bail-In Legislation Schedule shall mean the EU Bail-In Legislation
Schedule published by the Loan Market Association (or any successor Person), as in effect
from time to time.
Euro shall refer to the lawful currency of the Participating Member States.
Euro-Rate shall mean the following:
(a) with respect to the U.S. Dollar Loans comprising any Borrowing
Tranche to which the Euro-Rate Option applies for any Interest Period, the interest rate per
annum determined by the Administrative Agent as the rate which appears on the
Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates
at which U.S. Dollar deposits are offered by leading banks in the London interbank deposit
market), rounded upwards, if necessary, to the nearest 1/100th of one percent (1%) per
annum (with .005% being rounded up), or the rate which is quoted by another source
selected by the Administrative Agent as an authorized information vendor for the purpose
of displaying rates at which U.S. Dollar deposits are offered by leading banks in the
London interbank deposit market at approximately 11:00 a.m., London time, two (2)
Business Days prior to the commencement of such Interest Period as the Relevant
Interbank Market offered rate for U.S. Dollars for an amount comparable to such
Borrowing Tranche and having a borrowing date and a maturity comparable to such
Interest Period;
(b) with respect to Optional Currency Loans in Euros, British Pounds
Sterling, Japanese Yen or Swiss Francs comprising any Borrowing Tranche for any
Interest Period, the interest rate per annum determined by the Administrative Agent as the
rate which appears on the Bloomberg Page BBAM1 (or on such other substitute
Bloomberg page that displays rates at which the relevant Optional Currency is offered by
leading banks in the London interbank deposit market), rounded upwards, if necessary, to
the nearest 1/100th of one percent (1%) (with .005% being rounded up) per annum, or the
rate which is quoted by another source selected by the Administrative Agent as an
authorized information vendor for the purpose of displaying rates at which such applicable
Optional Currencies are offered by leading banks in the London interbank deposit market
at approximately 11:00 a.m., London time, two (2) Business Days prior to the
commencement of such Interest Period as the Relevant Interbank Market offered rate for
deposits in Euros, British Pounds Sterling or Swiss Francs, as applicable, for an amount
comparable to the principal amount of such Borrowing Tranche and having a borrowing
date and a maturity comparable to such Interest Period;
(c) with respect to Optional Currency Loans denominated in Canadian
Dollars comprising any Borrowing Tranche for any Interest Period, the interest rate per
annum (the “CDOR Rate”) as determined by the Administrative Agent, equal to the
arithmetic average rate applicable to Canadian Dollar bankers’ acceptances (C$BAs) for
the applicable Interest Period appearing on the Bloomberg page BTMM CA, rounded to
the nearest 1/100th of one percent (1%) (with .005% being rounded up) per annum, at
approximately 11:00 a.m. Eastern Time, two Business Days prior to the commencement of
such Interest Period, or if such day is not a Business Day, then on the immediately
13
preceding Business Day, provided that if such rate does not appear on the Bloomberg page
BTMM CA on such day the CDOR Rate on such day shall be the rate for such period
applicable to Canadian Dollar bankers’ acceptances quoted by a bank listed in Schedule I
of the Bank Act (Canada), as selected by the Administrative Agent, as of 11:00 a.m.
Eastern Time on such day or, if such day is not a Business Day, then on the immediately
preceding Business Day;
(d) with respect to Optional Currency Loans denominated in Australian
Dollars comprising any Borrowing Tranche for any Interest Period, the rate per annum
equal to the Australian Bank Xxxx Swap Bid Rate or the successor thereto as approved by
the Administrative Agent as published by Bloomberg (or on any successor or substitute
service providing rate quotations comparable to those currently provided by such service,
as determined by the Administrative Agent from time to time), rounded to the nearest
1/100th of 1% (with .005% being rounded up) per annum at approximately 10:00 a.m.,
Sydney, Australia time, two (2) Business Days prior to the commencement of such Interest
Period, as the rate for deposits in Australian Dollars with a maturity comparable to such
Interest Period;
(e) with respect to Optional Currency Loans denominated in Mexican
Pesos comprising any Borrowing Tranche for any Interest Period, the rate per annum equal
to the Mexican Interbank Equilibrium Interest Rate or the successor thereto as approved by
the Administrative Agent as published by Banco de México (or on any successor or
substitute service providing rate quotations comparable to those currently provided by such
service, as determined by the Administrative Agent from time to time) rounded to the
nearest 1/100th of 1% (with .005% being rounded up) per annum, at approximately 12:30
p.m., Mexico City, Mexico time, two (2) Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Mexican Pesos with a maturity comparable
to such Interest Period;
(f) with respect to Optional Currency Loans denominated in Singapore
Dollars comprising any Borrowing Tranche for any Interest Period, the rate per annum
equal to the Singapore Interbank Offered Rate (SIBOR) or the successor thereto as
approved by the Administrative Agent which appears on the Bloomberg Page ABSI (or on
such other substitute Bloomberg page that displays such rate) as published by the
Association of Banks in Singapore (ABS) (or on any successor or substitute service
providing rate quotations comparable to those currently provided by such service, as
determined by the Administrative Agent from time to time) rounded to the nearest 1/100th
of 1% (with .005% being rounded up) per annum, at approximately 11:30 a.m., Singapore
time, two (2) Business Days prior to the commencement of such Interest Period, as the rate
for deposits in Singapore Dollars with a maturity comparable to such Interest Period;
(g) with respect to Optional Currency Loans denominated in Danish
Krone comprising any Borrowing Tranche for any Interest Period, the rate per annum
equal to the Copenhagen Interbank Offered Rate (CIBOR) or the successor thereto as
approved by the Administrative Agent which appears on the Bloomberg Page BTMM DE
(or on such other substitute Bloomberg page that displays such rate) as published by
Denmark's National Bank (or on any successor or substitute service providing rate
14
quotations comparable to those currently provided by such service, as determined by the
Administrative Agent from time to time) rounded to the nearest 1/100th of 1% (with .005%
being rounded up) per annum, at approximately 11:00 a.m., Copenhagen, Denmark time,
two (2) Business Days prior to the commencement of such Interest Period, as the rate for
deposits in Danish Krone with a maturity comparable to such Interest Period;
(h) with respect to Optional Currency Loans denominated in
Norwegian Krone comprising any Borrowing Tranche for any Interest Period, the rate per
annum equal to the Norwegian Interbank Offered Rate (NIBOR) or the successor thereto as
approved by the Administrative Agent which appears on the Bloomberg Page BTMM NO
(or on such other substitute Bloomberg page that displays such rate) as published by Oslo
Børs (or on any successor or substitute service providing rate quotations comparable to
those currently provided by such service, as determined by the Administrative Agent from
time to time) rounded to the nearest 1/100th of 1% (with .005% being rounded up) per
annum, at approximately 11:00 a.m., Oslo, Norway time, two (2) Business Days prior to
the commencement of such Interest Period, as the rate for deposits in Norwegian Krone
with a maturity comparable to such Interest Period;
(i) with respect to Optional Currency Loans denominated in Swedish
Krona comprising any Borrowing Tranche for any Interest Period, the rate per annum
equal to the Stockholm Interbank Offered Rate (XXXXXX) or the successor thereto as
approved by the Administrative Agent which appears on the Bloomberg Page BTMM SW
(or on such other substitute Bloomberg page that displays such rate) as published by the
Swedish Bankers’ Association (or on any successor or substitute service providing rate
quotations comparable to those currently provided by such service, as determined by the
Administrative Agent from time to time) rounded to the nearest 1/100th of 1% (with .005%
being rounded up) per annum, at approximately 11:00 a.m., Stockholm, Sweden time, two
(2) Business Days prior to the commencement of such Interest Period, as the rate for
deposits in Swedish Krona with a maturity comparable to such Interest Period; and
(j) if, at any time, the Administrative Agent and all of the Lenders
approve an additional Optional Currency pursuant to Section 2.11.2(iii) [Requests for
Additional Optional Currencies], any reference in this Agreement to the Euro-Rate
applicable to any Optional Currency Loan in such additional Optional Currency shall be a
reference to a rate to be mutually agreed upon between the Administrative Agent and the
Borrower.
With respect to any Loans available at a Euro-Rate, if at any time, for any
reason, the source(s) for the Euro-Rate described above for the applicable currency or
currencies is no longer available, then the Administrative Agent may determine a
comparable replacement rate at such time (which determination shall be conclusive absent
manifest error).
Notwithstanding the foregoing, if the Euro-Rate as determined under any
method above would be less than zero (0.00), such rate shall be deemed to be zero (0.00)
for purposes of this Agreement.
15
Euro-Rate Option shall mean the option of the Borrower to have Loans bear
interest at the rate and under the terms set forth in either Section 3.1.1(ii) [Revolving Credit
Euro-Rate Option] or Section 3.1.2(ii) [Term Facility Euro-Rate Option], as applicable.
Event of Default shall mean any of the events described in Section 8.1
[Events of Default] and referred to therein as an "Event of Default."
Excess Cash shall have the meaning specified in Section 4.7.2
[Consolidated Cash Balance].
Excess Cash Flow means as for any fiscal period, the difference (if positive)
between (i) (a) Consolidated EBITDA minus (b) Unfunded Capital Expenditures minus (c)
any SAP Implementation Expenses added back to Consolidated EBITDA pursuant to
clause (a)(z) of such definition minus (d) cash proceeds from Asset Sales to the extent such
proceeds are prepaid in respect of the outstanding Loans pursuant to Section 4.7.3 [Asset
Sales and Recovery Events], and (ii) Consolidated Fixed Charges.
Exchange Act shall have the meaning specified in the definition of "Change
of Control".
Excluded Hedge Liability or Liabilities shall mean, with respect to each
Loan Party, each of its Swap Obligations if, and only to the extent that, all or any portion of
this Agreement or any other Loan Document that relates to such Swap Obligation is or
becomes illegal under the CEA, or any rule, regulation or order of the CFTC, solely by
virtue of such Loan Party's failure to qualify as an Eligible Contract Participant on the
Eligibility Date for such Swap. Notwithstanding anything to the contrary contained in the
foregoing or in any other provision of this Agreement or any other Loan Document, the
foregoing is subject to the following provisos: (a) if a Swap Obligation arises under a
master agreement governing more than one Swap, this definition shall apply only to the
portion of such Swap Obligation that is attributable to Swaps for which such guaranty or
security interest is or becomes illegal under the CEA, or any rule, regulations or order of
the CFTC, solely as a result of the failure by such Loan Party for any reason to qualify as an
Eligible Contract Participant on the Eligibility Date for such Swap, (b) if a guarantee of a
Swap Obligation would cause such obligation to be an Excluded Hedge Liability but the
grant of a security interest would not cause such obligation to be an Excluded Hedge
Liability, such Swap Obligation shall constitute an Excluded Hedge Liability for purposes
of the guaranty but not for purposes of the grant of the security interest, and (c) if there is
more than one Loan Party executing this Agreement or the other Loan Documents and a
Swap Obligation would be an Excluded Hedge Liability with respect to one or more of
such Persons, but not all of them, the definition of Excluded Hedge Liability or Liabilities
with respect to each such Person shall only be deemed applicable to (i) the particular Swap
Obligations that constitute Excluded Hedge Liabilities with respect to such Person, and (ii)
the particular Person with respect to which such Swap Obligations constitute Excluded
Hedge Liabilities.
16
Excluded Subsidiaries shall mean, collectively, each (i) Immaterial
Domestic Subsidiary, (ii) Disregarded Domestic Subsidiary and (iii) Foreign Subsidiary.
The Excluded Subsidiaries are not required to join this Agreement as Guarantors.
Excluded Taxes shall mean any of the following Taxes imposed on or with
respect to a Recipient or required to be withheld or deducted from a payment to a
Recipient, (i) Taxes imposed on or measured by net income (however denominated),
franchise Taxes, and branch profits Taxes, in each case, (a) imposed as a result of such
Recipient being organized under the laws of, or having its principal office or, in the case of
any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or
any political subdivision thereof) or (b) that are Other Connection Taxes, (ii) in the case of
a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the
account of such Lender with respect to an applicable interest in a Loan or Commitment
pursuant to a law in effect on the date on which (a) such Lender acquires such interest in
such Loan or Commitment (other than pursuant to an assignment request by the Borrower
under Section 4.6.2 [Replacement of a Lender]) or (b) such Lender changes its lending
office, except in each case to the extent that, pursuant to Section 4.9.7 [Status of Lenders],
amounts with respect to such Taxes were payable either to such Lender's assignor
immediately before such Lender became a party hereto or to such Lender immediately
before it changed its lending office, (iii) Taxes attributable to such Recipient's failure to
comply with Section 4.9.7 [Status of Lenders], and (iv) any U.S. federal withholding Taxes
imposed under FATCA (except to the extent imposed due to the failure of the Borrower to
provide documentation or information to the IRS).
Existing Letters of Credit shall mean all letters of credit set forth on
Schedule 1.1(E) that were issued by the financial institution listed on Schedule 1.1(E) prior
to the date hereofClosing Date upon the application of a Loan Party and are outstanding on
the Closing Date.
Expiration Date shall mean, with respect to the Revolving Credit
Commitments, May 9, 2021.
FATCA shall mean Sections 1471 through 1474 of the Code, as of the date
of this Agreement (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with), any current or future regulations or
official interpretations thereof and any agreements entered into pursuant to Section
1471(b)(1) of the Code.
Federal Funds Effective Rate for any day shall mean the rate per annum
(based on a year of 360 days and actual days elapsed and rounded upward to the nearest
1/100 of one percent (1%), with .005% being rounded up) announced by the Federal
Reserve Bank of New York (or any successor) on such day as being the weighted average
of the rates on overnight federal funds transactions arranged by federal funds brokers on
the previous trading day, as computed and announced by such Federal Reserve Bank (or
any successor) in substantially the same manner as such Federal Reserve Bank computes
and announces the weighted average it refers to as the "Federal Funds Effective Rate" as of
the date of this Agreement; provided, if such Federal Reserve Bank (or its successor) does
17
not announce such rate on any day, the "Federal Funds Effective Rate" for such day shall
be the Federal Funds Effective Rate for the last day on which such rate was announced.
Federal Funds Open Rate for any day shall mean the rate per annum (based
on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as
quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg
Screen BTMM for that day opposite the caption "OPEN" (or on such other substitute
Bloomberg Screen that displays such rate), or as set forth on such other recognized
electronic source used for the purpose of displaying such rate as selected by the
Administrative Agent (for purposes of this definition, an "Alternate Source") (or if such
rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute
screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer
exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a
comparable replacement rate determined by the Administrative Agent at such time (which
determination shall be conclusive absent manifest error); provided however, that if such
day is not a Business Day, the Federal Funds Open Rate for such day shall be the "open"
rate on the immediately preceding Business Day. If and when the Federal Funds Open
Rate changes, the rate of interest with respect to any advance to which the Federal Funds
Open Rate applies will change automatically without notice to the Borrower, effective on
the date of any such change.
Financial Advisor shall have the meaning specified in Section 7.1.12
[Financial Advisor].
First Amendment shall mean that certain Amendment and Joinder
Agreement, dated August 9, 2017, by and among the Borrower, the Guarantors party
thereto, the Lenders party thereto and the Administrative Agent.
First Amendment Effective Date shall mean the Effective Date (as such
term is defined in the First Amendment).
Fixed Charge Coverage Ratio shall mean, as of any date of determination,
the ratio of (A) (i) Consolidated EBITDA, less (ii) the aggregate amount of all Unfunded
Capital Expenditures, less (iii) SAP Implementation Related Expenses to the extent added
back to Consolidated EBITDA during the applicable period to (B) Consolidated Fixed
Charges; in the case of each of the foregoing clauses (A) and (B), (x) for the four (4)
consecutive fiscal quarters then ending if such date is a fiscal quarter end or (y) for the four
fiscal quarters most recently ended if such date is not a fiscal quarter end.
Foreign Currency Hedge shall mean any foreign exchange transaction,
including spot and forward foreign currency purchases and sales, listed or over-the-counter
options on foreign currencies, non-deliverable forwards and options, foreign currency
swap agreements, currency exchange rate price hedging arrangements, and any other
similar transaction providing for the purchase of one currency in exchange for the sale of
another currency.
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Foreign Currency Hedge Liabilities shall have the meaning assigned in the
definition of Lender Provided Foreign Currency Hedge.
Foreign Lender shall mean (i) if the Borrower is a U.S. Person, a Lender
that is not a U.S. Person, and (ii) if the Borrower is not a U.S. Person, a Lender that is
resident or organized under the Laws of a jurisdiction other than that in which the Borrower
is resident for tax purposes.
Foreign Subsidiary shall mean any Subsidiary of any Loan Party that is not
a Domestic Person.
GAAP shall mean generally accepted accounting principles as are in effect
from time to time, subject to the provisions of Section 1.3 [Accounting Principles; Changes
in GAAP], and applied on a consistent basis both as to classification of items and amounts.
Guarantor shall mean each of the parties to this Agreement which is
designated as a "Guarantor" on the signature page hereof and each other Person which joins
this Agreement as a Guarantor after the date hereofClosing Date, in each case until any
such Person is released from its obligations as a Guarantor pursuant to the terms of this
Agreement or any other Loan Document.
Guarantor Joinder shall mean a joinder by a Person as a Guarantor under the
Loan Documents in the form of Exhibit 1.1(G)(1).
Guaranty of any Person shall mean any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation of any other Person in any
manner, whether directly or indirectly, including any agreement to indemnify or hold
harmless any other Person, any performance bond or other suretyship arrangement and any
other form of assurance against loss, except endorsement of negotiable or other
instruments for deposit or collection in the ordinary course of business.
Guaranty Agreement or Guaranty Agreements shall mean, singularly or
collectively, as the context may require, any Guaranty and Suretyship Agreement executed
and delivered by any Person to the Administrative Agent for the benefit of the Lenders on
or after the date hereofClosing Date, substantially in the form of Exhibit 1.1(G)(2).
Hedge Liabilities shall mean collectively, the Foreign Currency Hedge
Liabilities and the Interest Rate Hedge Liabilities.
ICC shall have the meaning specified in Section 10.11.1 [Governing Law].
Immaterial Domestic Subsidiary means, at any date of determination, each
Domestic Subsidiary of the Borrower that has been designated as such on Schedule 1.1(I)
of this Agreement (as such Schedule may be updated pursuant to the terms of this
Agreement), provided that (a) for purposes of the Agreement, at no time shall the total
assets of any Immaterial Domestic Subsidiary at the last day of the most recently ended
fiscal quarter equal or exceed Ten Million and 00/100 Dollars ($10,000,000.00), as
determined in accordance with GAAP, and (b) the Borrower shall not designate any new
19
Immaterial Domestic Subsidiary on Schedule 1.1(I) in accordance with the terms of this
Agreement if such designation would not comply with the provisions set forth in clause (a)
above.
Increasing Lender shall have the meaning specified in Section 2.12.1
[Increasing Lenders and New Lenders].
Indebtedness shall mean, as to any Person at any time, any and all
indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or
unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person
for or in respect of: (i) borrowed money, (ii) amounts raised under or liabilities in respect
of any note purchase or acceptance credit facility, (iii) reimbursement obligations
(contingent or otherwise) under any letter of credit agreement, (iv) Hedge Liabilities, (v)
any other transaction (including forward sale or purchase agreements, Capital Leases and
conditional sales agreements) having the commercial effect of a borrowing of money
entered into by such Person to finance its operations or capital requirements (but not
including trade payables and accrued expenses incurred in the ordinary course of business
which are not represented by a promissory note or other evidence of indebtedness and
which are paid in accordance with their commercial terms), or (vi) any Guaranty of
Indebtedness for borrowed money.
Indemnified Taxes shall mean (i) Taxes, other than Excluded Taxes,
imposed on or with respect to any payment made by or on account of any obligation of any
Loan Party under any Loan Document, and (ii) to the extent not otherwise described in the
preceding clause (i), Other Taxes.
Indemnitee shall have the meaning specified in Section 10.3.2
[Indemnification by the Borrower].
Information shall mean all information received from the Loan Parties or
any of their Subsidiaries relating to the Loan Parties or any of such Subsidiaries or any of
their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Lender on a non-confidential basis prior
to disclosure by the Loan Parties or any of their Subsidiaries.
Insolvency Proceeding shall mean, with respect to any Person, (a) a case,
action or proceeding with respect to such Person (i) before any court or any other Official
Body under any bankruptcy, insolvency, reorganization or other similar Law now or
hereafter in effect, or (ii) for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or similar official) of any Loan Party or otherwise
relating to the liquidation, dissolution, winding-up or relief of such Person, or (b) any
general assignment for the benefit of creditors, composition, marshaling of assets for
creditors, or other, similar arrangement in respect of such Person's creditors generally or
any substantial portion of its creditors; undertaken under any Law.
20
Intercompany Subordination Agreement shall mean athe Intercompany
Subordination Agreement amongexecuted and delivered on the Closing Date by the Loan
Parties and their Subsidiaries in the form attached hereto as Exhibit 1.1(I).
Interest Coverage Ratio shall mean, as of any date of determination, the
ratio of (A) Consolidated EBITDA to (B) Interest Expense (i) for the four (4) consecutive
fiscal quarters then ending if such date is a fiscal quarter end or (ii) for the four fiscal
quarters most recently ended if such date is not a fiscal quarter end.
Interest Expense shall mean for any period of determination the sum of
interest expense, in each case of the Borrower and its Subsidiaries for such period
determined and consolidated in accordance with GAAP.
Interest Period shall mean the period of time selected by the Borrower in
connection with (and to apply to) any election permitted hereunder by the Borrower to
have Revolving Credit Loans bear interest under the Euro-Rate Option. Subject to the last
sentence of this definition, such period shall be one (1) week (in the case of U.S. Dollar
denominated Loans only) or one (1), two (2), three (3) or six (6) Months. Such Interest
Period shall commence on the effective date of such Interest Rate Option, which shall be (i)
the Borrowing Date if the Borrower is requesting new Loans, or (ii) the date of renewal of
or conversion to the Euro-Rate Option if the Borrower is renewing or converting to the
Euro-Rate Option applicable to outstanding Loans. Notwithstanding the second sentence
hereof: (A) any Interest Period which would otherwise end on a date which is not a
Business Day shall be extended to the next succeeding Business Day unless such Business
Day falls in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (B) the Borrower shall not select, convert to or renew an
Interest Period for any portion of the Loans that would end after the Expiration Date.
Interest Rate Hedge shall mean an interest rate exchange, collar, cap, swap,
floor, adjustable strike cap, adjustable strike corridor, cross-currency swap or similar
agreements entered into by any Loan Party in order to provide protection to, or minimize
the impact upon, such Loan Party of increasing floating rates of interest applicable to
Indebtedness.
Interest Rate Hedge Liabilities shall have the meaning assigned in the
definition of Lender Provided Interest Rate Hedge.
Interest Rate Option shall mean the Base Rate Option or the Euro-Rate
Option.
IRS shall mean the United States Internal Revenue Service.
ISP98 shall have the meaning specified in Section 10.11.1 [Governing
Law].
Issuing Lender shall mean PNC in its individual capacity as issuer of
Letters of Credit hereunder, and any other Lender that Borrower, Administrative Agent
and such other Lender may agree may from time to time issue Letters of Credit hereunder.
21
Japanese Yen shall mean the official currency of Japan.
Joint Venture shall mean a corporation, partnership, limited liability
company or other entity in which any Person other than the Loan Parties and their
Subsidiaries holds, directly or indirectly, an equity interest (other than any Person holding
a nominal equity interest solely in order to comply with any legal requirements of the
jurisdiction of organization of the applicable corporation, partnership, limited liability
company or other entity with respect to formation or capitalization).
Law shall mean any law(s) (including common law), constitution, statute,
treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order,
executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or
award of or any settlement arrangement, by agreement, consent or otherwise, with any
Official Body, foreign or domestic.
Lender Provided Foreign Currency Hedge shall mean a Foreign Currency
Hedge which is provided by any Person that was a Lender or its Affiliate at the time such
Foreign Currency Hedge was entered into or which was in existence on the Closing Date
and which: (a) is documented in a standard International Swaps and Derivatives
Association Master Agreement or another reasonable and customary manner, and (b) is
entered into for hedging (rather than speculative) purposes. The liabilities owing to the
provider of any Lender Provided Foreign Currency Hedge (the "Foreign Currency Hedge
Liabilities") by any Loan Party that is party to such Lender Provided Foreign Currency
Hedge shall, for purposes of this Agreement and all other Loan Documents be
"Obligations" of such Person and of each other Loan Party, be guaranteed obligations
under the Guaranty Agreement and secured obligations under any other Loan Document,
as applicable, and otherwise treated as Obligations for purposes of the other Loan
Documents, except to the extent constituting Excluded Hedge Liabilities of such Person.
The Liens securing the Foreign Currency Hedge Liabilities shall be pari passu with the
Liens securing all other Obligations under this Agreement and the other Loan Documents,
subject to the express provisions of Section 8.2.5 [Application of Proceeds].
Lender Provided Interest Rate Hedge shall mean an Interest Rate Hedge
which is provided by any Person that was a Lender or its Affiliate at the time such Interest
Rate Hedge was entered into or which was in existence on the Closing Date and which: (a)
is documented in a standard International Swaps and Derivatives Association Master
Agreement, or another reasonable and customary manner, and (b) is entered into for
hedging (rather than speculative) purposes. The liabilities owing to the provider of any
Lender Provided Interest Rate Hedge (the "Interest Rate Hedge Liabilities") by any Loan
Party that is party to such Lender Provided Interest Rate Hedge shall, for purposes of this
Agreement and all other Loan Documents be "Obligations" of such Person and of each
other Loan Party, be guaranteed obligations under any Guaranty Agreement and secured
obligations under any other Loan Document, as applicable, and otherwise treated as
Obligations for purposes of the other Loan Documents, except to the extent constituting
Excluded Hedge Liabilities of such Person. The Liens securing the Hedge Liabilities shall
be pari passu with the Liens securing all other Obligations under this Agreement and the
22
other Loan Documents, subject to the express provisions of Section 8.2.5 [Application of
Proceeds].
Lenders shall mean the financial institutions named on Schedule 1.1(B) and
their respective successors and assigns as permitted hereunder, each of which is referred to
herein as a Lender. For the purpose of any Loan Document which provides for the granting
of a security interest or other Lien to the Lenders or to the Administrative Agent for the
benefit of the Lenders as security for the Obligations, "Lenders" shall include any Affiliate
of a Lender to which such Obligation is owed.
Lending Office shall mean, as to the Administrative Agent, the Issuing
Lender or any Lender, the office or offices of such Person described as such in such
Person’s administrative questionnaire, or such other office or offices as such Person may
from time to time notify the Borrower and the Administrative Agent, which office may
include any Affiliate of such Person or any domestic or foreign branch of such Person or
such Affiliate.
Letter of Credit shall have the meaning specified in Section 2.9.1 [Issuance
of Letters of Credit].
Letter of Credit Borrowing shall have the meaning specified in Section
2.9.3 [Disbursements, Reimbursement].
Letter of Credit Fee shall have the meaning specified in Section 2.9.2
[Letter of Credit Fees].
Letter of Credit Obligation shall mean, as of any date of determination, the
aggregate Dollar Equivalent amount available to be drawn under all outstanding Letters of
Credit on such date (if any Letter of Credit shall increase in amount automatically in the
future, such aggregate Dollar Equivalent amount available to be drawn shall currently give
effect to any such future increase) plus the aggregate Dollar Equivalent amount of
Reimbursement Obligations and Letter of Credit Borrowings on such date.
Letter of Credit Sublimit shall have the meaning specified in Section 2.9.1
[Issuance of Letters of Credit].
Leverage Ratio shall mean, as of any date of determination, the ratio of (A)
Consolidated Funded Debt on such date to (B) Consolidated EBITDA (i) for the four (4)
consecutive fiscal quarters then ending if such date is a fiscal quarter end or (ii) for the four
(4) fiscal quarters most recently ended if such date is not a fiscal quarter end.
Lien shall mean any mortgage, deed of trust, pledge, lien, security interest,
charge or other encumbrance or security arrangement of any nature whatsoever, whether
voluntarily or involuntarily given, including any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or having the
effect of, security and any filed financing statement or other notice of any of the foregoing.
23
Loan Documents shall mean this Agreement, the Administrative Agent's
Letter, the Guaranty Agreements, the Intercompany Subordination Agreement, the Notes,
the Patent, Trademark and Copyright Security Agreement, the Pledge Agreement, the
Security Agreement and any other instruments, certificates or documents delivered in
connection herewith or therewith.
Loan Parties shall mean the Borrower and the Guarantors.
Loan Request shall have the meaning specified in Section 2.5 [Revolving
Credit Loan Requests; Swing Loan Requests].
Loans shall mean collectively and Loan shall mean separately all Revolving
Credit Loans and, Swing Loans and Term Loans or any Revolving Credit Loan or, Swing
Loan or Term Loan.
Material Adverse Change shall mean any set of circumstances or events
which (a) has or would reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of this Agreement or any other Loan
Document, (b) is or would reasonably be expected to be material and adverse to the
business, properties, assets, financial condition or results of operations of the Loan Parties
taken as a whole, (c) impairs materially or would reasonably be expected to impair
materially the ability of the Loan Parties taken as a whole to duly and punctually pay or
perform any of the Obligations, or (d) impairs materially or would reasonably be expected
to impair materially the ability of the Administrative Agent or any of the Lenders, to the
extent permitted, to enforce their legal remedies pursuant to this Agreement or any other
Loan Document.
Mexican Pesos shall mean the official currency of Mexico.
Month, with respect to an Interest Period shall mean the interval between
the days in consecutive calendar months numerically corresponding to the first day of such
Interest Period. If any Interest Period begins on a day of a calendar month for which there
is no numerically corresponding day in the month in which such Interest Period is to end,
the final month of such Interest Period shall be deemed to end on the last Business Day of
such final month.
Multiemployer Plan shall mean any employee pension benefit plan which is
a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to which
the Borrower or any member of the ERISA Group is then making or accruing an obligation
to make contributions or, within the preceding five plan years, has made or had an
obligation to make such contributions.
New Lender shall have the meaning specified in Section 2.12.1 [Increasing
Lenders and New Lenders].
Net Cash Proceeds shall mean:
24
(i) with respect to any Asset Sale or any Recovery Event, the proceeds
thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when received), net of,
without duplication, attorneys' fees, accountants' fees, sales commissions, investment
banking and other customary advisor fees, amounts required to be applied to the repayment
of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the
subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Loan
Document) and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any tax sharing
arrangements); and
(ii) with respect to any issuance of Indebtedness or equity, the cash
proceeds thereof, net of, without duplication, customary fees, commissions, underwriting
discounts, costs and other expenses incurred in connection therewith.
Non-Consenting Lender shall have the meaning specified in Section 10.1
[Modifications, Amendments or Waivers].
Non-Qualifying Party shall mean any Loan Party that fails for any reason to
qualify as an Eligible Contract Participant on the Effective Date of the applicable Swap.
Norwegian Krone shall mean the official currency of Norway.
Notes shall mean collectively, and Note shall mean separately, the
promissory notes substantially in the form of Exhibit 1.1(N)(1) evidencing the Revolving
Credit Loans and, substantially in the form of Exhibit 1.1(N)(2) evidencing the Swing
Loan and substantially in the form of Exhibit 1.1(N)(3) evidencing the Term Loans.
Obligation shall mean any obligation or liability of any of the Loan Parties,
howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent,
now or hereafter existing, or due or to become due, under or in connection with (i) this
Agreement, the Notes, the Letters of Credit, the Administrative Agent's Letter or any other
Loan Document whether to the Administrative Agent, any of the Lenders or their Affiliates
or other persons provided for under such Loan Documents, (ii) any Lender Provided
Interest Rate Hedge, (iii) any Lender Provided Foreign Currency Hedge, and (iv) any Other
Lender Provided Financial Service Product. Notwithstanding anything to the contrary
contained in the foregoing, the Obligations shall not include any Excluded Hedge
Liabilities.
Official Body shall mean the government of the United States of America
or any other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank) and any group or body charged with
25
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).
Optional Currency shall mean the following lawful currencies: British
Pounds Sterling, Swiss Francs, Euros, Canadian Dollars, Singapore Dollars, Danish
Krone, Euros, Japanese Yen, Australian Dollars, Mexican Pesos, Norwegian Krone,
Swedish Krona and any other currency approved by Administrative Agent and all of the
Lenders pursuant to Section 2.11.2(iii) [European Monetary Union; Requests for
Additional Optional Currencies]. Subject to Section 2.11.2 [European Monetary Union],
each Optional Currency must be the lawful currency of the specified country.
Optional Currency Loans shall have the meaning specified in Section 2.1.1
[Revolving Credit Loans; Optional Currency Loans].
Optional Currency Sublimit shall have the meaning specified in Section
2.1.1 [Revolving Credit Loans; Optional Currency Loans].
Order shall have the meaning specified in Section 2.9.9 [Liability for Acts
and Omissions].
Original Currency shall have the meaning specified in Section 4.12
[Currency Conversion Procedures for Judgments].
Other Currency shall have the meaning specified in Section 4.12 [Currency
Conversion Procedures for Judgments].
Other Connection Taxes shall mean, with respect to any Recipient, Taxes
imposed as a result of a present or former connection between such Recipient (or an agent
or affiliate thereof) and the jurisdiction imposing such Tax (other than connections arising
solely from such Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
Other Lender Provided Financial Service Product shall mean agreements or
other arrangements under which any Lender or Affiliate of a Lender provides any of the
following products or services to any of the Loan Parties: (a) credit cards, (b) credit card
processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions, or (f) cash
management, including controlled disbursement, accounts or services.
Other Taxes shall mean all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect to, any Loan Document,
except any such Taxes that are Other Connection Taxes imposed with respect to an
26
assignment (other than an assignment made pursuant to Section 4.6.2 [Replacement of a
Lender]).
Overnight Rate shall mean for any day with respect to any Loans in an
Optional Currency, the rate of interest per annum as determined by the Administrative
Agent at which overnight deposits in such currency, in an amount approximately equal to
the amount with respect to which such rate is being determined, would be offered for such
day in the Relevant Interbank Market.
Participant has the meaning specified in Section 10.8.4 [Participations].
Participant Register shall have the meaning specified in Section 10.8.4
[Participations].
Participating Member State shall mean any member State of the European
Communities that adopts or has adopted the Euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary Union.
Participation Advance shall have the meaning specified in Section 2.9.3
[Disbursements, Reimbursement].
Patent, Trademark and Copyright Security Agreement shall mean the
Patent, Trademark and Copyright Security Agreement in substantially the form of Exhibit
1.1(P)(1) executed and delivered on the Closing Date by each of the Loan Parties to the
Administrative Agent for the benefit of the Lenders.
Payment Date shall mean the first day of each calendar quarter after the date
hereofClosing Date and on the Expiration Date or upon acceleration of the Notes.
Payment In Full and Paid in Full shall mean the indefeasible payment in full
in cash of the Loans and other Obligations hereunder (other than contingent
indemnification obligations which by their terms survive the termination of the
Commitments and payment of the Loans), termination of the Commitments and expiration,
termination or cash collateralization (in accordance with the terms of this Agreement) of all
Letters of Credit.
PBGC shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
Pension Plan shall mean at any time an "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA) (including a "multiple employer plan" as
described in Sections 4063 and 4064 of ERISA, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards under
Section 412 or Section 430 of the Code and either (i) is sponsored, maintained or
contributed to by any member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding five years been sponsored,
maintained or contributed to by any entity which was at such time a member of the ERISA
Group for employees of any entity which was at such time a member of the ERISA Group,
27
or in the case of a "multiple employer" or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five plan
years.
Permitted Acquisition shall have the meaning specified in Section 7.2.6(vi)
[Liquidations, Mergers, Consolidations, Acquisitions].
Permitted Investments shall mean:
(i) direct obligations of the United States of America or any agency or
instrumentality thereof or obligations backed by the full faith and credit of the United
States of America maturing in twelve (12) months or less from the date of acquisition;
(ii) commercial paper maturing in 180 days or less rated not lower than
A-1, by Standard & Poor's or P-1 by Xxxxx'x Investors Service, Inc. on the date of
acquisition;
(iii) demand deposits, time deposits or certificates of deposit maturing
within one year from the date of acquisition and issued by (A) commercial banks whose
obligations are rated A-1, A or the equivalent or better by Standard & Poor's on the date of
acquisition, (B) a Lender or (C) a bank having combined capital and surplus of not less
than $500,000,000 on the date of acquisition;
(iv) money market or mutual funds whose investments are limited to
those types of investments described in clauses (i)-(iii) above;
(v) investments made under the Cash Management Agreements or
under cash management agreements with any other Lenders; and
(vi) in the case of Foreign Subsidiaries, investments denominated in the
currency of the jurisdiction in which such Subsidiary is organized or has its principal place
of business which are similar to the investments specified in clauses (i) through (iv) of this
definition made in the ordinary course of business with any commercial bank that satisfies
the requirements of clause (iii) above.
Permitted Liens shall mean:
(i) Liens for taxes, assessments, or similar charges, incurred in the
ordinary course of business and which are not yet due and payable;
(ii) Pledges or deposits made in the ordinary course of business to
secure payment of workmen's compensation, or to participate in any fund in connection
with workmen's compensation, unemployment insurance, old-age pensions or other social
security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers, or other
like Liens, securing obligations incurred in the ordinary course of business that are not yet
28
due and payable and statutory and common law Liens of landlords securing obligations to
pay lease payments that are not yet due and payable or in default;
(iv) Good-faith pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, not in excess of the aggregate amount due thereunder, or to
secure statutory obligations, or surety, appeal, indemnity, performance or other similar
bonds required in the ordinary course of business;
(v) Encumbrances consisting of zoning restrictions, easements,
covenants, conditions, servitudes, rights-of-way or other restrictions on the use of real
property, or minor imperfections in title thereto, none of which materially impairs the use
of such property or the value thereof, and none of which is violated in any material respect
by existing or proposed structures or land use;
(vi) Liens, security interests and mortgages in favor of the
Administrative Agent for the benefit of the Lenders and their Affiliates securing the
Obligations (including Lender Provided Interest Rate Xxxxxx, Lender Provided Foreign
Currency Xxxxxx and Other Lender Provided Financial Services Obligations);
(vii) Any Lien existing on the date of this Agreement and described on
Schedule 1.1(P), and any extension, replacement or renewal thereof, provided that the
principal amount secured thereby is not hereafter increased, and no additional assets
become subject to such Lien;
(viii) Subject to any limitation set forth in Section 7.2.1 [Indebtedness]
with respect to any related Indebtedness, (a) Purchase Money Security Interests and
Capital Leases; provided that such Liens shall be limited to the assets acquired with such
purchase money financing or leased pursuant to such Capital Lease; and (b) Liens existing
on property of any Person that becomes a Subsidiary after the date of this Agreement that
exists at the time such Person becomes a Subsidiary and is not created in anticipation or
contemplation of such Person becoming a Subsidiary;
(ix) The following, (A) if the validity or amount thereof is being
contested in good faith by appropriate and lawful proceedings diligently conducted so long
as levy and execution thereon have been stayed and continue to be stayed or (B) if a final
judgment is entered and such judgment is discharged within thirty (30) days of entry, and
in either case they do not affect the Collateral or, in the aggregate, materially impair the
ability of any Loan Party to perform its Obligations hereunder or under the other Loan
Documents:
(1) claims or Liens for taxes, assessments or charges due and
payable and subject to interest or penalty; provided that the applicable Loan Party
maintains such reserves or other appropriate provisions as shall be required by GAAP and
pays all such taxes, assessments or charges forthwith upon the commencement of
proceedings to foreclose any such Lien;
29
(2) claims, Liens or encumbrances upon, and defects of title to,
real or personal property other than the Collateral, including any attachment of personal or
real property or other legal process prior to adjudication of a dispute on the merits;
(3) claims or Liens of mechanics, materialmen, warehousemen,
carriers, or other statutory nonconsensual Liens; or
(4) Liens resulting from final judgments or orders to the extent
not constituting and Event of Default pursuant to Section 8.1.7 [Final Judgments or
Orders];
(x) Precautionary filings under the UCC by a lessor with respect to
personal property leased to any Person;
(xi) Liens on insurance policies and proceeds thereof, or other deposits,
to secure insurance premium financings;
(xii) Liens in favor of the United States of America which arise in the
ordinary course of business resulting from progress payments or partial payments under
United States government contracts or subcontracts thereunder; and
(xiii) Liens securing other obligations of the Loan Parties and their
Subsidiaries in an aggregate amount not to exceed Fifteen MillionFive Hundred Thousand
and 00/100 Dollars ($15,000,000.00500,000.00) at any one time outstanding.
Person shall mean any individual, corporation, partnership, limited liability
company, association, joint-stock company, trust, unincorporated organization, joint
venture, government or political subdivision or agency thereof, or any other entity.
Pledge Agreement shall mean the Pledge Agreement in substantially the
form of Exhibit 1.1(P)(2) executed and delivered on the Closing Date by each of the Loan
Parties to the Administrative Agent for the benefit of the Lenders.
PNC shall mean PNC Bank, National Association, its successors and
assigns.
Potential Default shall mean any event or condition which with notice or
passage of time, or both, would constitute an Event of Default.
Prime Rate shall mean the interest rate per annum announced from time to
time by the Administrative Agent at its Principal Office as its then prime rate, which rate
may not be the lowest or most favorable rate then being charged commercial borrowers or
others by the Administrative Agent. Any change in the Prime Rate shall take effect at the
opening of business on the day such change is announced.
Principal Office shall mean the main banking office of the Administrative
Agent in Pittsburgh, Pennsylvania.
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Prior Security Interest shall mean a valid and enforceable perfected
first-priority security interest under the UCC in the Collateral which is subject only to
Permitted Liens.
Projections shall have the meaning specified in Section 5.1.6(ii) [Financial
Projections].
Published Rate shall mean the rate of interest published each Business Day
in The Wall Street Journal "Money Rates" listing under the caption "London Interbank
Offered Rates" for a one month period (or, if no such rate is published therein for any
reason, then the Published Rate shall be the rate at which U.S. dollar deposits are offered
by leading banks in the London interbank deposit market for a one month period as
published in another publication selected by the Administrative Agent).
Purchase Money Security Interest shall mean Liens upon tangible personal
property securing loans to any Loan Party or Subsidiary of a Loan Party or deferred
payments by such Loan Party or Subsidiary for the purchase of such tangible personal
property
Qualified ECP Loan Party shall mean each Loan Party that on the
Eligibility Date is (a) a corporation, partnership, proprietorship, organization, trust, or
other entity other than a "commodity pool" as defined in Section 1a(10) of the CEA and
CFTC regulations thereunder that has total assets exceeding Ten Million and 00/100
Dollars ($10,000,000.00), or (b) an Eligible Contract Participant that can cause another
person to qualify as an Eligible Contract Participant on the Eligibility Date under Section
1a(18)(A)(v)(II) of the CEA by entering into or otherwise providing a "letter of credit or
keepwell, support, or other agreement" for purposes of Section 1a(18)(A)(v)(II) of the
CEA.
Ratable Share shall mean:
(i) with respect to a Lender's obligation to make Revolving Credit
Loans, participate in Letters of Credit and other Letter of Credit Obligations, and right to
receive payments, interest, and fees related thereto, the proportion that such Lender's
Revolving Credit Commitment bears to the Revolving Credit Commitments of all of the
Lenders, provided however that if the Revolving Credit Commitments have terminated or
expired, the Ratable Shares for purposes of this clause shall be determined based upon the
Revolving Credit Commitments most recently in effect, giving effect to any assignments.;
(ii) with respect to a Lender's obligation to make Term Loans, the
proportion that such Lender’s Term Loan Commitment bears to the Term Loan
Commitments of all of the Lenders, and with respect to a Lender’s right to receive
payments, interest, and fees related to Term Loans, the proportion that such Lender's Term
Loans bears to the Term Loans of all of the Lenders; and
(iii) with respect to all other matters as to a particular Lender, the
percentage obtained by dividing (i) such Lender's Revolving Credit Commitment plus its
outstanding Term Loan, by (ii) the aggregate amount of the Revolving Credit
31
Commitments plus the outstanding Term Loans of all Lenders; provided however that if
the Revolving Credit Commitments have terminated or expired, the computation in this
clause shall be determined based upon the Revolving Credit Commitments most recently
in effect, giving effect to any assignments, and not on the current amount of the Revolving
Credit Commitments and provided further in the case of Section 2.10 [Defaulting Lenders]
when a Defaulting Lender shall exist, "Ratable Share" shall mean the percentage of the
aggregate Commitments (disregarding any Defaulting Lender's Commitment) represented
by such Lender's Commitment.
Recipient shall mean (i) the Administrative Agent, (ii) any Lender and (iii)
the Issuing Lender, as applicable.
Reduced Leverage Threshold shall mean the maximum Leverage Ratio
then permitted for the applicable period pursuant to Section 7.2.13 [Maximum Leverage
Ratio] minus 0.50 from the Consolidated Funded Debt component of such ratio.Recovery
Event shall mean any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Loan Party or
any of its Subsidiaries.
Reference Currency shall have the meaning specified in the definition of
"Equivalent Amount."
Reimbursement Obligation shall have the meaning specified in Section
2.9.3 [Disbursements, Reimbursement].
Related Parties shall mean, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
Release Date shall mean the date on which the Administrative Agent
releases its Liens in the Collateral in accordance with Section 10.16 [Release of Collateral
Securing the Obligations]. [Reserved].
Release Request shall have the meaning specified in Section 10.16 [Release
of Collateral Securing the Obligations].
Release Trigger Conditions shall mean the occurrence of the following: (A)
the Loan Parties shall have submitted Compliance Certificates for two (2) consecutive
fiscal quarters, calculated for the four (4) consecutive fiscal quarters then ending, each
evidencing a Leverage Ratio of less than or equal to 2.50 to 1.00; provided, that the last day
of such period of two (2) consecutive fiscal quarters shall not be earlier than September 30,
2017; and (B) no Potential Default or Event of Default has occurred and is continuing upon
satisfaction of the condition in the foregoing clause (A).
Relevant Interbank Market shall mean in relation to Euro, British Pounds
Sterling, Japanese Yen or Swiss Francs, the London Interbank Market, and in relation to
any other currencies, the applicable offshore interbank market. Notwithstanding the
foregoing, the references to the currencies listed in this definition shall only apply if such
32
currencies are or become available as Optional Currencies in accordance with the terms
hereof.
Relief Proceeding shall mean any proceeding seeking a decree or order for
relief in respect of any Loan Party or Subsidiary of a Loan Party in a voluntary or
involuntary case under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan
Party or Subsidiary of a Loan Party for any substantial part of its property, or for the
winding-up or liquidation of its affairs, or an assignment for the benefit of its creditors.
Repatriation Funds shall have the meaning specified in the definition of
"Consolidated Cash Balance".
Reportable Compliance Event shall mean that any Covered Entity becomes
a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging
instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law
or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or
circumstances to the effect that it is reasonably likely that any aspect of its operations is in
actual or probable violation of any Anti-Terrorism Law.
Required Lenders shall mean
(A) If there exists fewer than three (3) Lenders, all Lenders (other than
any Defaulting Lender), and
(B) If there exist three (3) or more Lenders, Lenders (other than any
Defaulting Lender) having more than fifty percent (50%) of the sum of (a) the aggregate
amount of the Revolving Credit Commitments of the Lenders (excluding any Defaulting
Lender) or, after the termination of the Revolving Credit Commitments, the outstanding
Revolving Credit Loans and Ratable Share of Letter of Credit Obligations of the Lenders
(excluding any Defaulting Lender) and (b) the aggregate outstanding amount of any Term
Loans.
Required Share shall have the meaning assigned to such term in Section
4.11 [Settlement Date Procedures].
Resolution Authority shall mean any Person which has authority to exercise
any Write-down and Conversion Powers.
Revolving Credit Commitment shall mean, as to any Lender at any time, the
amount initially set forth opposite its name on Schedule 1.1(B) in the column labeled
"Amount of Commitment for Revolving Credit Loans," as such Commitment is thereafter
assigned or modified and Revolving Credit Commitments shall mean the aggregate
Revolving Credit Commitments of all of the Lenders.
Revolving Credit Loans shall mean collectively and Revolving Credit Loan
shall mean separately all Revolving Credit Loans or any Revolving Credit Loan made by
33
the Lenders or one of the Lenders to the Borrower pursuant to Section 2.1 [Revolving
Credit Commitments] or Section 2.9.3 [Disbursements, Reimbursement].
Revolving Facility Usage shall mean at any time the sum of the outstanding
Revolving Credit Loans, the outstanding Swing Loans, and the Letter of Credit
Obligations.
Sanctioned Country shall mean a country subject to a sanctions program
maintained under any Anti-Terrorism Law.
Sanctioned Person shall mean any individual person, group, regime, entity
or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or
debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions
(including but not limited to the blocking of property or rejection of transactions), under
any Anti-Terrorism Law.
SAP Implementation Related Expenses shall mean the implementation
costs incurred in connection with the Borrower’s SAP ERP system, whether expensed,
deferred or capitalized, in an aggregate amount not to exceed Twenty Million and 00/100
Dollars ($20,000,000.00) during the term of this Agreement.
SEC shall mean the United States Securities and Exchange Commission.
Security Agreement shall mean the Security Agreement in substantially the
form of Exhibit 1.1(S) executed and delivered on the Closing Date by each of the Loan
Parties to the Administrative Agent for the benefit of the Lenders.
Settlement Date shall mean the Business Day on which the Administrative
Agent elects to effect settlement pursuant Section 4.11 [Settlement Date Procedures].
Singapore Dollars shall mean the official currency of Singapore.
Solvent shall mean, with respect to any Person on any date of
determination, taking into account any right of reimbursement, contribution or similar right
available to such Person from other Persons, that on such date (i) the fair value of the
property of such Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (ii) the present fair saleable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (iii) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other commitments
as they mature in the normal course of business, (iv) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature, and (v) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances existing at such
34
time, represents the amount that can reasonably be expected to become an actual or
matured liability.
South Korean Won shall mean the official currency of South Korea.
Standard & Poor's shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
Standby Letter of Credit shall mean a Letter of Credit (including a direct
pay letter of credit) issued to support obligations of one or more of the Loan Parties or their
Subsidiaries, contingent or otherwise, which finance the working capital and business
needs of the Loan Parties or their Subsidiaries, but excluding any Letter of Credit (a) under
which the stated amount of such Letter of Credit increases automatically over time or (b)
that is a Commercial Letter of Credit.
Statements shall have the meaning specified in Section 5.1.6(i) [Historical
Statements].
Subsidiary of any Person at any time shall mean any corporation, trust,
partnership, limited liability company or other business entity (i) of which more than fifty
percent (50%) of the outstanding voting securities or other interests normally entitled to
vote for the election of one or more directors or trustees (regardless of any contingency
which does or may suspend or dilute the voting rights) is at such time owned directly or
indirectly by such Person or one or more of such Person's Subsidiaries, or (ii) which is
controlled or capable of being controlled by such Person or one or more of such Person's
Subsidiaries.
Subsidiary Equity Interests shall have the meaning specified in Section
5.1.2 [Subsidiaries; Investment Companies].
Swap shall mean any "swap" as defined in Section 1a(47) of the CEA and
regulations thereunder, other than (a) a swap entered into, or subject to the rules of, a board
of trade designated as a contract market under Section 5 of the CEA, or (b) a commodity
option entered into pursuant to CFTC Regulation 32.3(a).
Swap Obligation shall mean any obligation to pay or perform under any
agreement, contract or transaction that constitutes a Swap which is also a Lender Provided
Interest Rate Hedge, or a Lender Provided Foreign Currency Hedge.
Swedish Krona shall mean the official currency of Sweden.
Swing Loan Commitment shall have the meaning specified in Section 2.1.2
[Swing Loans].
Swing Loan Lender shall mean PNC, in its capacity as a lender of Swing
Loans.
35
Swing Loan Note shall mean the Swing Loan Note of the Borrower in the
form of Exhibit 1.1(N)(2) evidencing the Swing Loans, together with all amendments,
extensions, renewals, replacements, refinancings or refundings thereof in whole or in part.
Swing Loan Request shall mean a request for Swing Loans made in
accordance with Section 2.5.2 [Swing Loan Requests] hereof.
Swing Loans shall mean collectively and Swing Loan shall mean separately
all Swing Loans or any Swing Loan made by PNC to the Borrower pursuant to Section
2.1.2 [Swing Loan Commitment] hereof.
Swiss Francs shall mean the official currency of Switzerland.
Taiwanese Dollars shall mean the official currency of Taiwan.
Taxes shall mean all present or future taxes, levies, imposts, duties,
deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Official Body, including any interest, additions to tax or penalties
applicable thereto.
Term Loan Commitment means, as to any Lender at any time, the amount
initially set forth opposite its name on Schedule 1.1(B) in the column labeled "Amount of
Commitment for Term Loans," as such Commitment is thereafter assigned or modified and
Term Loan Commitments means the aggregate Term Loan Commitments of all of the
Lenders.
Term Loans means collectively and Term Loan means separately all Term
Loans or any Term Loans made by the Lenders or one of the Lenders to the Borrower
pursuant to Section 2.1.3 [Term Loans Commitments].
UCC shall mean the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
UCP shall have the meaning specified in Section 10.11.1 [Governing Law].
Unfunded Capital Expenditures shall mean Capital Expenditures other than
those made utilizing the proceeds from financing provided by the applicable seller or third
party lenders or proceeds from equity issuances, asset sales or insurance proceeds. For the
avoidance of doubt, Capital Expenditures made utilizing Revolving Credit Loans or Swing
Loans shall be deemed Unfunded Capital Expenditures.
USA Patriot Act shall mean the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended,
amended or replaced.
U.S. Person shall mean any Person that is a "United States Person" as
defined in Section 7701(a)(30) of the Code.
36
U.S. Tax Compliance Certificate shall have the meaning specified in
Section 4.9.7 [Status of Lenders].
Withholding Agent shall mean any Loan Party and the Administrative
Agent.
Write-down and Conversion Powers shall mean, 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.
1.2 Construction. Unless the context of this Agreement otherwise clearly
requires, the following rules of construction shall apply to this Agreement and each of the
other Loan Documents: (i) references to the plural include the singular, the plural, the part
and the whole and the words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation"; (ii) the words "hereof," "herein," "hereunder,"
"hereto" and similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole; (iii) article, section, subsection,
clause, schedule and exhibit references are to this Agreement or other Loan Document, as
the case may be, unless otherwise specified; (iv) reference to any Person includes such
Person's successors and assigns; (v) reference to any agreement, including this Agreement
and any other Loan Document together with the schedules and exhibits hereto or thereto,
document or instrument means such agreement, document or instrument as amended,
modified, replaced, substituted for, superseded or restated; (vi) relative to the
determination of any period of time, "from" means "from and including," "to" means "to
but excluding," and "through" means "through and including"; (vii) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights, (viii) section headings herein and in each other Loan Document are
included for convenience and shall not affect the interpretation of this Agreement or such
Loan Document, and (ix) unless otherwise specified, all references herein to times of day
shall constitute references to Eastern Time and (x) references to “any fiscal quarter ended
or ending” as of or on a specific date (and words of similar import) in this Agreement or
any other Loan Document shall be deemed to refer to the fiscal quarter of the Borrower
ended or ending on or nearest to such specific date.
1.3 Accounting Principles; Changes in GAAP. Except as otherwise provided in
this Agreement, all computations and determinations as to accounting or financial matters
and all financial statements to be delivered pursuant to this Agreement shall be made and
prepared in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings ascribed to such
terms by GAAP; provided, however, that all accounting terms used in Section 7.2
[Negative Covenants] (and all defined terms used in the definition of any accounting term
used in Section 7.2) shall have the meaning given to such terms (and defined terms) under
GAAP as in effect on the date hereofClosing Date applied on a basis consistent with those
used in preparing Statements referred to in Section 5.1.6(i) [Historical Statements].
37
Notwithstanding the foregoing, if the Borrower notifies the Administrative Agent in
writing that the Borrower wishes to amend any financial covenant in Section 7.2 of this
Agreement, any related definition and/or the definition of the term Leverage Ratio for
purposes of interest, Letter of Credit Fee and Commitment Fee determinations to eliminate
the effect of any change in GAAP occurring after the Closing Date on the operation of such
financial covenants and/or interest, Letter of Credit Fee or Commitment Fee
determinations (or if the Administrative Agent notifies the Borrower in writing that the
Required Lenders wish to amend any financial covenant in Section 7.2, any related
definition and/or the definition of the term Leverage Ratio for purposes of interest, Letter
of Credit Fee and Commitment Fee determinations to eliminate the effect of any such
change in GAAP), then the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratios or requirements to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, the Loan Parties' compliance with such covenants and/or
the definition of the term Leverage Ratio for purposes of interest, Letter of Credit Fee and
Commitment Fee determinations shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either such notice
is withdrawn or such covenants or definitions are amended in a manner satisfactory to the
Borrower and the Required Lenders, and the Loan Parties shall provide to the
Administrative Agent, when they deliver their financial statements pursuant to Section
7.3.17.3.1.2 [Quarterly Financial Statements] and 7.3.2 [Annual Financial Statements] of
this Agreement, such reconciliation statements as shall be reasonably requested by the
Administrative Agent. Notwithstanding the foregoing or anything in this Agreement to the
contrary, whenever in this Agreement it is necessary to determine whether a lease is a
Capital Lease or an operating lease, such determination shall be made on the basis of
GAAP as in effect on the Closing Date (provided that if there is a change in GAAP after the
Closing Date that effects the treatment of Capital Leases or operating leases, all financial
statements delivered to the Administrative Agent in accordance with the terms of this
Agreement after the date of such change in GAAP shall be accompanied by a schedule
showing the adjustments necessary to reconcile such financial statements with GAAP as in
effect immediately prior to such accounting change).
1.4 Currency Calculations. All financial statements and Compliance
Certificates shall be set forth in Dollars. For purposes of preparing the financial
statements, calculating financial covenants and determining compliance with covenants
expressed in Dollars, Optional Currencies, Alternate Currencies and other non-Dollar
currencies shall be converted to Dollars in accordance with GAAP.
2. REVOLVING CREDIT AND, SWING LOAN AND TERM LOAN FACILITIES
2.1 Revolving Credit Commitments.
2.1.1 Revolving Credit Loans; Optional Currency Loans. Subject
to the terms and conditions hereof and relying upon the representations and warranties
herein set forth, each Lender severally agrees to make Revolving Credit Loans in either
Dollars or one or more Optional Currencies to the Borrower at any time or from time to
time on or after the date hereofClosing Date to the Expiration Date; provided that after
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giving effect to each such Loan (i) the aggregate Dollar Equivalent amount of Revolving
Credit Loans from such Lender shall not exceed such Lender's Revolving Credit
Commitment minus such Lender's Ratable Share of the outstanding Swing Loans and
Letter of Credit Obligations, (ii) the Revolving Facility Usage shall not exceed the
Revolving Credit Commitments, (iii) no Revolving Credit Loan to which the Base Rate
Option applies shall be made in an Optional Currency, and (iv) the aggregate Dollar
Equivalent principal amount of Revolving Credit Loans made in an Optional Currency
(each an "Optional Currency Loan") plus the aggregate Dollar Equivalent amount of all
Letter of Credit Obligations denominated in an Alternate Currency shall not exceed Fifty
Million and 00/100 Dollars ($50,000,000.00) (the "Optional Currency Sublimit").
Within such limits of time and amount and subject to the other provisions of this
Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section
2.12.1.1.
2.1.2 Swing Loan Commitment. Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set forth, and
in order to facilitate loans and repayments between Settlement Dates, PNC may, at its
option, cancelable at any time for any reason whatsoever, make swing loans in Dollars (the
"Swing Loans") to the Borrower at any time or from time to time after the date
hereofClosing Date to, but not including, the Expiration Date, in an aggregate principal
amount up to but not in excess of Fifteen Million and 00/100 Dollars ($15,000,000.00) (the
"Swing Loan Commitment"), provided that after giving effect to such Loan, the
Revolving Facility Usage shall not exceed the aggregate Revolving Credit Commitments
of the Lenders. Within such limits of time and amount and subject to the other provisions
of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section
2.1.2.
2.1.3 Term Loan Commitments. Subject to the terms and
conditions hereof, and relying upon the representations and warranties herein set forth,
each Lender severally agrees to make a Term Loan in Dollars to the Borrower on the First
Amendment Effective Date in such principal amount as the Borrower shall request up to,
but not exceeding such Lender's Term Loan Commitment. The Term Loan Commitments
are not revolving credit commitments, and the Borrower shall not have the right to borrow,
repay and reborrow under this Section 2.1.3.
2.2 Nature of Lenders' Obligations with Respect to Revolving Credit Loans and
Term Loans.
2.2.1 Revolving Credit Loans. Each Lender shall be obligated to
participate in each request for Revolving Credit Loans pursuant to Section 2.5 [Revolving
Credit Loan Requests; Swing Loan Requests] in accordance with its Ratable Share. The
aggregate Dollar Equivalent of each Lender's Revolving Credit Loans outstanding
hereunder to the Borrower at any time shall never exceed its Revolving Credit
Commitment minus its Ratable Share of the outstanding Swing Loans and Letter of Credit
Obligations. The obligations of each Lender hereunder are several. The failure of any
Lender to perform its obligations hereunder shall not affect the Obligations of the
Borrower to any other party nor shall any other party be liable for the failure of such
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Lender to perform its obligations hereunder. The Lenders shall have no obligation to make
Revolving Credit Loans hereunder on or after the Expiration Date.
2.2.2 Term Loans. Each Lender shall be obligated to participate
in the Term Loans pursuant to Section 2.1.3 [Term Loan Commitments] in accordance
with its Ratable Share. The aggregate of each Lender's Term Loans outstanding hereunder
to the Borrower at any time shall never exceed its Term Loan Commitment. The
obligations of each Lender hereunder are several. The failure of any Lender to perform its
obligations hereunder shall not affect the Obligations of the Borrower to any other party
nor shall any other party be liable for the failure of such Lender to perform its obligations
hereunder. The Lenders shall have no obligation to make Term Loans after the First
Amendment Effective Date, and any portion of the Term Loan Commitment not drawn on
the First Amendment Effective Date shall automatically expire.
2.3 Commitment Fees. Accruing from the date hereofClosing Date until the
Expiration Date, the Borrower agrees to pay to the Administrative Agent for the account of
each Lender according to its Ratable Share, a nonrefundable commitment fee (the
"Commitment Fee") equal to the Applicable Commitment Fee Rate (computed on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) multiplied
by the average daily difference between the amount of (i) the Revolving Credit
Commitments and (ii) the Dollar Equivalent amount of the Revolving Facility Usage
(provided however, that solely in connection with determining the share of each Lender in
the Commitment Fee, the Revolving Facility Usage with respect to the portion of the
Commitment Fee allocated to PNC shall include the full amount of the outstanding Swing
Loans, and with respect to the portion of the Commitment Fee allocated by the
Administrative Agent to all of the Lenders other than PNC, such portion of the
Commitment Fee shall be calculated (according to each such Lender's Ratable Share) as if
the Revolving Facility Usage excludes the outstanding Swing Loans); provided, further,
that any Commitment Fee accrued with respect to the Revolving Credit Commitment of a
Defaulting Lender during the period prior to the time such Lender became a Defaulting
Lender and unpaid at such time shall not be payable by the Borrower so long as such
Lender shall be a Defaulting Lender except to the extent that such Commitment Fee shall
otherwise have been due and payable by the Borrower prior to such time; and provided
further that no Commitment Fee shall accrue with respect to the Revolving Credit
Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
Subject to the proviso in the directly preceding sentence, all Commitment Fees shall be
payable in arrears on each Payment Date and in U.S. Dollars.
2.4 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three (3) Business Days' notice to the
Administrative Agent, to terminate the Revolving Credit Commitments or, from time to
time, to reduce the aggregate amount of the Revolving Credit Commitments (ratably
among the Lenders in proportion to their Ratable Shares); provided that no such
termination or reduction of Revolving Credit Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Credit Loans made on the
effective date thereof, the Revolving Facility Usage would exceed the aggregate Revolving
Credit Commitments of the Lenders. Any such reduction shall be in an amount equal to
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Twenty Million and 00/100 Dollars ($20,000,000.00), or a whole multiple thereof, and
shall reduce permanently the Revolving Credit Commitments then in effect. Any such
reduction or termination shall be accompanied by prepayment of the Notes, together with
outstanding Commitment Fees, and the full amount of interest accrued on the principal
sum to be prepaid (and all amounts referred to in Section 4.10 [Indemnity] hereof) to the
extent necessary to cause the aggregate Revolving Facility Usage after giving effect to
such prepayments to be equal to or less than the Revolving Credit Commitments as so
reduced or terminated. Any notice to reduce the Revolving Credit Commitments under
this Section 2.4 shall be irrevocable.
2.5 Revolving Credit Loan Requests; Swing Loan Requests.
2.5.1 Revolving Credit Loan Requests. Except as otherwise
provided herein, the Borrower may from time to time prior to the Expiration Date request
the Lenders to make Revolving Credit Loans, or renew or convert the Interest Rate Option
applicable to existing Revolving Credit Loans or Term Loans pursuant to Section 3.2
[Interest Periods], by delivering to the Administrative Agent, not later than 12:00 noon (a)
(i) three (3) Business Days prior to the proposed Borrowing Date with respect to the
making of Revolving Credit Loans in Dollars to which the Euro-Rate Option applies or the
conversion to or the renewal of the Euro-Rate Option for any Loans in Dollars; (ii) four (4)
Business Days prior to the proposed Borrowing Date with respect to the making of
Optional Currency Loans (other than such Loans in Singapore Dollars, Japanese Yen or
Australian Dollars) or the date of conversion to or renewal of the Euro-Rate Option for any
Optional Currency Loan (other than such Loans in Singapore Dollars, Japanese Yen or
Australian Dollars); or (iii) five (5) Business Days prior to the proposed Borrowing Date
with respect to the making of Optional Currency Loans in Singapore Dollars, Japanese Yen
or Australian Dollars or the date of conversion to or renewal of the Euro-Rate Option for
any Optional Currency Loan in Singapore Dollars, Japanese Yen or Australian Dollars),
and (b) the same Business Day of the proposed Borrowing Date with respect to the making
of a Revolving Credit Loan to which the Base Rate Option applies or the last day of the
preceding Interest Period with respect to the conversion to the Base Rate Option for any
Loan, of a duly completed request therefor substantially in the form of Exhibit 2.5.1 or a
request by telephone immediately confirmed in writing by letter, facsimile or e-mail (in
“pdf”, “tif” or similar format) in such form (each, a "Loan Request"), it being understood
that the Administrative Agent may rely on the authority of any individual making such a
telephonic request without the necessity of receipt of such written confirmation. Each
Loan Request shall be irrevocable and shall specify (A) the proposed Borrowing Date, (B)
the aggregate amount of the proposed Loans comprising each Borrowing Tranche, and, if
applicable, the Interest Period, which amount shall be in (x) integral multiples of One
Million and 00/100 Dollars ($1,000,000.00) (or the Dollar Equivalent thereof) and not less
than Five Million and 00/100 Dollars ($5,000,000.00) (or the Dollar Equivalent thereof)
for each Borrowing Tranche under the Euro-Rate Option, and (y) integral multiples of One
Hundred Thousand and 00/100 Dollars ($100,000.00) and not less than One Million and
00/100 Dollars ($1,000,000.00) for each Borrowing Tranche under the Base Rate Option,
(B) which InterestC) whether the Euro-Rate Option or Base Rate Option shall apply to the
proposed Dollar denominated Loans comprising the applicable Borrowing Tranche, (C)D)
if applicable, the currency in which such Revolving Credit Loans shall be funded if the
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Borrower elects an Optional Currency, the applicable Interest the Euro-Rate Option, and
(D)(E) in the case of a Borrowing Tranche to which the Euro-Rate Option applies, an
appropriate Interest Period, if applicable for the Loans comprising such Borrowing
Tranche, (F) the amount of the Consolidated Cash Balance (without regard to the requested
Loans), and the pro forma amount of the Consolidated Cash Balance (giving effect to the
requested Loans), (G) a breakdown of the amount of the Consolidated Cash Balance of the
Borrower and all of the Domestic Subsidiaries and the Consolidated Cash Balance of all of
the Foreign Subsidiaries and (H) the aggregate amount of such Loans that are to be used as
Repatriation Funds.
Notwithstanding the requirement under this Section 2.5.1 that the Borrower
deliver a Loan Request at least three (3) Business Days prior to a proposed Borrowing Date
with respect to the making of Revolving Credit Loans in Dollars to which the Euro-Rate
Option applies, the Lenders agree that the Borrower may deliver a Loan Request on the
same Business Day as the proposed Borrowing Date with respect to a Loan Request made
on the Closing Date.
2.5.2 Swing Loan Requests. Except as otherwise provided
herein, the Borrower may from time to time prior to the Expiration Date request the Swing
Loan Lender to make Swing Loans by delivery to the Swing Loan Lender not later than
12:00 noon on the proposed Borrowing Date of a duly completed request therefor
substantially in the form of Exhibit 2.5.2 hereto or a request by telephone immediately
confirmed in writing by letter, facsimile or e-mail (in “pdf”, “tif” or similar format) (each,
a "Swing Loan Request"), it being understood that the Administrative Agent may rely on
the authority of any individual making such a telephonic request without the necessity of
receipt of such written confirmation. Each Swing Loan Request shall be irrevocable and
shall specify the proposed Borrowing Date and the principal amount of such Swing Loan,
which shall be in integral multiples of One Hundred Thousand and 00/100 Dollars
($100,000.00) and not less than Five Hundred Thousand and 00/100 Dollars
($500,000.00).
2.6 Making Revolving Credit Loans and Swing Loans; Presumptions by the
Administrative Agent; Repayment of Revolving Credit Loans and the Term Loan;
Borrowings to Repay Swing Loans; Designated Lenders.
2.6.1 Making Revolving Credit Loans. The Administrative
Agent shall, promptly after receipt by it of a Loan Request pursuant to Section 2.5
[Revolving Credit Loan Requests; Swing Loan Requests], notify the Lenders of its receipt
of such Loan Request specifying the information provided by the Borrower, including the
currency in which the Revolving Credit Loan is requested, and the apportionment among
the Lenders of the requested Revolving Credit Loans as determined by the Administrative
Agent in accordance with Section 2.2 [Nature of Lenders' Obligations with Respect to
Revolving Credit Loans and Term Loans]. Each Lender shall remit the principal amount of
each Revolving Credit Loan in the requested currency (in the case of Optional Currency
Loans, in Dollars if so requested by the Administrative Agent) to the Administrative Agent
such that the Administrative Agent is able to, and the Administrative Agent shall, to the
extent the Lenders have made funds available to it for such purpose and subject to Section
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6.2 [Each Loan or Letter of Credit], fund such Revolving Credit Loans to the Borrower in
U.S. Dollars or the requested Optional Currency (as applicable) in immediately available
funds at the Principal Office prior to 2:00 p.m., on the applicable Borrowing Date;
provided that if any Lender fails to remit such funds to the Administrative Agent in a
timely manner, the Administrative Agent may elect in its sole discretion to fund with its
own funds, including funds in the requested Optional Currency, the Revolving Credit
Loans of such Lender on such Borrowing Date, and such Lender shall be subject to the
repayment obligation in Section 2.6.2 [Presumptions by the Administrative Agent].
2.6.2 Presumptions by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed time
of any Base Rate Loan, or, for Loans other than Base Rate Loans, prior to the close of
business the day before the Borrowing Date, that such Lender will not make available to
the Administrative Agent such Lender's share of such Loan, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with
Section 2.6.1 [Making Revolving Credit Loans] and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Loan available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in the appropriate
currency with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal
Funds Effective Rate (or, for payments in an Optional Currency, the Overnight Rate), and a
rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the Borrower, the
interest rate applicable to Loans under the Base Rate Option. If such Lender pays its share
of the applicable Loan to the Administrative Agent, then the amount so paid shall
constitute such Lender's Loan. Any payment by the Borrower shall be without prejudice to
any claim the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
2.6.3 Making Swing Loans. So long as PNC elects to make
Swing Loans, PNC shall, after receipt by it of a Swing Loan Request pursuant to Section
2.5.2, [Swing Loan Requests], fund such Swing Loan to the Borrower in U.S. Dollars only
and in immediately available funds at the Principal Office prior to 4:00 p.m. on the
Borrowing Date.
2.6.4 Repayment of Revolving Credit Loans. The Borrower shall
repay the Revolving Credit Loans together with all outstanding interest thereon on the
Expiration Date.
2.6.5 Borrowings to Repay Swing Loans. PNC may, at its option,
exercisable at any time for any reason whatsoever, demand repayment of the Swing Loans,
and each Lender shall make a Revolving Credit Loan in an amount equal to such Lender's
Ratable Share of the aggregate principal amount of the outstanding Swing Loans, plus, if
PNC so requests, accrued interest thereon, provided that no Lender shall be obligated in
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any event to make Revolving Credit Loans in excess of its Revolving Credit Commitment
minus its Ratable Share of Letter of Credit Obligations. Revolving Credit Loans made
pursuant to the preceding sentence shall bear interest at the Base Rate Option and shall be
deemed to have been properly requested in accordance with Section 2.5.1 [Revolving
Credit Loan Requests] without regard to any of the requirements of that provision. PNC
shall provide notice to the Lenders (which may be telephonic or written notice by letter,
facsimile or telex) that such Revolving Credit Loans are to be made under this Section
2.6.5 and of the apportionment among the Lenders, and the Lenders shall be
unconditionally obligated to fund such Revolving Credit Loans (whether or not the
conditions specified in Section 2.5.1 [Revolving Credit Loan Requests] are then satisfied)
by the time PNC so requests, which shall not be earlier than 3:00 p.m. on the Business Day
next after the date the Lenders receive such notice from PNC.
2.6.6 Swing Loans Under Cash Management Agreements. In
addition to making Swing Loans pursuant to the foregoing provisions of Section 2.6.3
[Making Swing Loans], without the requirement for a specific request from the Borrower
pursuant to Section 2.5.2 [Swing Loan Requests], PNC as the Swing Loan Lender may
make Swing Loans to the Borrower in accordance with the provisions of the agreements
between the Borrower and such Swing Loan Lender relating to the Borrower's deposit,
sweep and other accounts at such Swing Loan Lender and related arrangements and
agreements regarding the management and investment of the Borrower's cash assets as in
effect from time to time (the "Cash Management Agreements") to the extent of the daily
aggregate net negative balance in the Borrower's accounts which are subject to the
provisions of the Cash Management Agreements. Swing Loans made pursuant to this
Section 2.6.6 in accordance with the provisions of the Cash Management Agreements shall
(i) be subject to the limitations as to aggregate amount set forth in Section 2.1.2 [Swing
Loan Commitment], (ii) not be subject to the limitations as to individual amount set forth in
Section 2.5.2 [Swing Loan Requests], (iii) be payable by the Borrower, both as to principal
and interest, at the rates and times set forth in the Cash Management Agreements (but in no
event later than the Expiration Date), (iv) not be made at any time after such Swing Loan
Lender has received written notice of the occurrence of an Event of Default and so long as
such shall continue to exist, or, unless consented to by the Required Lenders, a Potential
Default and so long as such shall continue to exist, (v) if not repaid by the Borrower in
accordance with the provisions of the Cash Management Agreements, be subject to each
Lender's obligation pursuant to Section 2.6.5 [Borrowings to Repay Swing Loans], and (vi)
except as provided in the foregoing subsections (i) through (v), be subject to all of the
terms and conditions of this Section 2.
2.6.7 Repayment of Term Loans3
. The principal amount of the Term Loans shall be due and payable in
consecutive quarterly installments commencing on October 15, 2017 and continuing on the
fifteenth (15th) day of each January, April, July and October thereafter. The amount of
each quarterly principal installment of the Term Loans shall be equal to (A) One Million
Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) with respect to the
quarterly installments that are due and payable by the Borrower on October 15, 2017 and
on each of the next three (3) quarterly payment dates thereafter, and (B) Two Million Five
44
Hundred Thousand and 00/100 Dollars ($2,500,000.00) with respect to the quarterly
installments that are due and payable by the Borrower on October 15, 2018 and on each of
the quarterly payment dates thereafter; provided, however, that the final principal
repayment installment of the Term Loans shall be repaid on the Expiration Date and in any
event shall be in an amount equal to the aggregate principal amount of all Term Loans
outstanding on such date.
2.6.8 Designated Lenders. Notwithstanding anything herein to
the contrary, each of the Administrative Agent, the Issuing Lender and each other Lender
at its option may make any Loan or otherwise perform its obligations hereunder through
any Lending Office (as hereinafter defined) (each, a "Designated Lender"); provided that
any exercise of such option shall not affect the obligation of the Borrower to repay any
Loan in accordance with the terms of this Agreement. Any Designated Lender shall be
considered a Lender; provided that in the case of an Affiliate or branch of a Lender, all
provisions applicable to a Lender shall apply to such Affiliate or branch of such Lender to
the same extent as such Lender. For purposes of this Section 2.6.7,2.6.8, "Lending
Office" shall mean, as to the Administrative Agent, the Issuing Lender or any other
Lender, the office or offices of such Person described as such in such Person’s
administrative questionnaire, or such other office or offices as such Person may from time
to time notify the Borrower and the Administrative Agent; which office may include any
Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.
2.7 Notes. The Obligation of the Borrower to repay the aggregate unpaid
principal amount of the Revolving Credit Loans and, Swing Loans and Term Loans made
to it by each Lender, together with interest thereon, shall be evidenced by a revolving credit
Note and, a swing Note and a Term Note, dated the Closing Date payable to the order of
such Lender in a face amount equal to the Revolving Credit Commitment or, Swing Loan
Commitment or Term Loan Commitment, as applicable, of such Lender.
2.8 Use of Proceeds. The proceeds of the Loans shall be used (i) to refinance
Indebtedness of the Borrower on the Closing Date and, in the case of the Term Loans, to
refinance Revolving Credit Loans of the Borrower on the First Amendment Effective Date
and (ii) for general corporate purposes of the Borrower.
2.9 Letter of Credit Subfacility.
2.9.1 Issuance of Letters of Credit. The Borrower or any Loan
Party may at any time prior to the Expiration Date request the issuance of a letter of credit
(each a "Letter of Credit"), which may be denominated in either Dollars or an Alternate
Currency, for its own account or the account of another Loan Party or any Subsidiary (in
which case the Borrower and such Subsidiary shall be co-applicants with respect to such
Letter of Credit), or the amendment or extension of an existing Letter of Credit, by
delivering or transmitting electronically, or having such other Loan Party deliver or
transmit electronically to the Issuing Lender (with a copy to the Administrative Agent) a
completed application for letter of credit, or request for such amendment or extension, as
applicable, in such form as the Issuing Lender may specify from time to time by no later
than 10:00 a.m. at least five (5) Business Days, or such shorter period as may be agreed to
45
by the Issuing Lender, in advance of the proposed date of issuance. Each Letter of Credit
shall be a Standby Letter of Credit or a Commercial Letter of Credit. The Borrower or any
Loan Party shall authorize and direct the Issuing Lender to name the Borrower or any Loan
Party or any Subsidiary as the "Applicant" or "Account Party" of each Letter of Credit.
Promptly after receipt of any letter of credit application, the Issuing Lender shall confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit application and if not, such Issuing Lender will
provide the Administrative Agent with a copy thereof.
2.9.1.1 Unless the Issuing Lender has received notice
from any Lender, the Administrative Agent or any Loan Party, at least one day prior to the
requested date of issuance, amendment or extension of the applicable Letter of Credit, that
one or more applicable conditions in Section 6 [Conditions of Lending and Issuance of
Letters of Credit] is not satisfied, then, subject to the terms and conditions hereof and in
reliance on the agreements of the other Lenders set forth in this Section 2.9, the Issuing
Lender or any of the Issuing Lender's Affiliates will issue the proposed Letter of Credit or
agree to such amendment or extension, provided that each Letter of Credit shall (A) have a
maximum maturity of twelve (12) months from the date of issuance; provided that the
Letter of Credit may include a provision for the automatic extension of the Letter of Credit,
and (B) in no event expire later than the Expiration Date (except that a Letter of Credit may
expire up to one year beyond the Expiration Date if such Letter of Credit has been cash
collateralized by the Borrower in an amount equal to one hundred five percent (105%) of
the undrawn amount of such Letter of Credit on terms and conditions acceptable to the
Administrative Agent and the Issuing Lender, each in its reasonable discretion, prior to the
issuance of such Letter of Credit) and provided further that in no event shall (i) the Letter of
Credit Obligations exceed, at any one time, Twenty-Five Million and 00/100 Dollars
($25,000,000.00) (the "Letter of Credit Sublimit"), (ii) the Revolving Facility Usage
exceed, at any one time, the Revolving Credit Commitments or (iii) the aggregate Dollar
Equivalent principal amount of Optional Currency Loans plus the aggregate Dollar
Equivalent amount of all Letter of Credit Obligations denominated in an Alternate
Currency exceed the Optional Currency Sublimit. Each request by the Borrower for the
issuance, amendment or extension of a Letter of Credit shall be deemed to be a
representation by the Borrower that it shall be in compliance with the preceding sentence
and with Section 6 [Conditions of Lending and Issuance of Letters of Credit] after giving
effect to the requested issuance, amendment or extension of such Letter of Credit.
Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to
the beneficiary thereof, the applicable Issuing Lender will also deliver to the Borrower and
the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
2.9.1.2 Notwithstanding Section 2.9.1.1, the Issuing
Lender shall not be under any obligation to issue any Letter of Credit if (i) any order,
judgment or decree of any Official Body or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Lender from issuing the Letter of Credit, or any Law applicable to the
Issuing Lender or any request or directive (whether or not having the force of law) from
any Official Body with jurisdiction over the Issuing Lender shall prohibit, or request that
the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of
Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of
46
Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Lender in good xxxxx xxxxx material to it, or (ii) the
issuance of the Letter of Credit would violate one or more policies of the Issuing Lender
applicable to letters of credit generally.
Each Existing Letter of Credit shall be deemed to have been issued hereunder on the
Closing Date by the Issuing Lender. Each Existing Letter of Credit shall be deemed to be a
Letter of Credit for all purposes of this Agreement.
2.9.2 Letter of Credit Fees. The Borrower shall pay in Dollars, or
at the Administrative Agent’s option, the Alternate Currency in which each Letter of Credit
is issued (i) to the Administrative Agent for the ratable account of the Lenders a fee (the
"Letter of Credit Fee") equal to (a) the Applicable Commercial Letter of Credit Fee Rate
on the daily amount available to be drawn under each Commercial Letter of Credit and (b)
the Applicable Standby Letter of Credit Fee Rate on the daily amount available to be drawn
under each Standby Letter of Credit, and (ii) to the Issuing Lender for its own account a
fronting fee equal to one eighth of one percent (0.125%) per annum on the daily amount
available to be drawn under each Letter of Credit. All Letter of Credit Fees and fronting
fees shall be computed on the basis of a year of 360 days and actual days elapsed and shall
be payable quarterly in arrears on each Payment Date following issuance of each Letter of
Credit. The Borrower shall also pay (in Dollars) to the Issuing Lender for the Issuing
Lender's sole account the Issuing Lender's then in effect customary fees and administrative
expenses payable with respect to the Letters of Credit as the Issuing Lender may generally
charge or incur from time to time in connection with the issuance, maintenance,
amendment (if any), assignment or transfer (if any), negotiation, and administration of
Letters of Credit.
2.9.3 Disbursements, Reimbursement. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Issuing Lender a participation in such
Letter of Credit and each drawing thereunder in an amount equal to such Lender's Ratable
Share of the maximum amount available to be drawn under such Letter of Credit and the
amount of such drawing, respectively, in each case in the currency in which each Letter of
Credit is issued.
2.9.3.1 In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuing Lender will promptly
notify the Borrower and the Administrative Agent thereof. Provided that it shall have
received such notice, the Borrower shall reimburse (such obligation to reimburse the
Issuing Lender shall sometimes be referred to as a "Reimbursement Obligation") the
Issuing Lender prior to 12:00 noon on each date that an amount is paid by the Issuing
Lender under any Letter of Credit (each such date, a "Drawing Date") by paying to the
Administrative Agent for the account of the Issuing Lender an amount equal to the amount
so paid by the Issuing Lender in the same currency as paid, unless otherwise required by
the Administrative Agent or the Issuing Lender. In the event the Borrower fails to
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reimburse the Issuing Lender (through the Administrative Agent) for the full amount of
any drawing under any Letter of Credit by 12:00 noon on the Drawing Date, the
Administrative Agent will promptly notify each Lender thereof, and the Borrower shall be
deemed to have requested that Revolving Credit Loans in U.S. Dollars (and, if the Letter of
Credit was denominated in another currency, in the Dollar Equivalent amount to the
amount paid by the Issuing Lender in such other currency on the Drawing Date thereof) be
made by the Lenders under the Base Rate Option to be disbursed on the Drawing Date
under such Letter of Credit, subject to the amount of the unutilized portion of the
Revolving Credit Commitment and subject to the conditions set forth in Section 6.2 [Each
Loan or Letter of Credit] other than any notice requirements. Any notice given by the
Administrative Agent or Issuing Lender pursuant to this Section 2.9.3.1 may be oral if
immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.
2.9.3.2 Each Lender shall upon any notice pursuant to
Section 2.9.3.1 make available to the Administrative Agent for the account of the Issuing
Lender an amount in Dollars in immediately available funds equal to its Ratable Share of
the amount of the drawing (and, if the Letter of Credit was denominated in another
currency, in the Dollar Equivalent amount to the amount paid by the Issuing Lender in such
other currency on the Drawing Date thereof), whereupon the participating Lenders shall
(subject to Section 2.9.3 [Disbursements; Reimbursement]) each be deemed to have made
a Revolving Credit Loan under the Base Rate Option to the Borrower in that amount. If
any Lender so notified fails to make available in Dollars to the Administrative Agent for
the account of the Issuing Lender the amount of such Lender's Ratable Share of such
amount by no later than 2:00 p.m. on the Drawing Date, then interest shall accrue on such
Lender's obligation to make such payment, from the Drawing Date to the date on which
such Lender makes such payment (i) at a rate per annum equal to the Federal Funds
Effective Rate during the first three (3) days following the Drawing Date and (ii) at a rate
per annum equal to the rate applicable to Revolving Credit Loans under the Base Rate
Option on and after the fourth day following the Drawing Date. The Administrative Agent
and the Issuing Lender will promptly give notice (as described in Section 2.9.3.1 above) of
the occurrence of the Drawing Date, but failure of the Administrative Agent or the Issuing
Lender to give any such notice on the Drawing Date or in sufficient time to enable any
Lender to effect such payment on such date shall not relieve such Lender from its
obligation under this Section 2.9.3.2.
2.9.3.3 With respect to any unreimbursed drawing that is
not converted into Revolving Credit Loans in Dollars under the Base Rate Option to the
Borrower in whole or in part as contemplated by Section 2.9.3.1, because of the Borrower's
failure to satisfy the conditions set forth in Section 6.2 [Each Loan or Letter of Credit]
other than any notice requirements, or for any other reason, the Borrower shall be deemed
to have incurred from the Issuing Lender a borrowing (each a "Letter of Credit
Borrowing") in Dollars in the amount of such drawing (and, if the Letter of Credit was
denominated in another currency, in the Dollar Equivalent amount to the amount paid by
the Issuing Lender in such other currency on the Drawing Date thereof). Such Letter of
Credit Borrowing shall be due and payable on demand (together with interest) and shall
bear interest at the rate per annum applicable to the Revolving Credit Loans under the Base
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Rate Option. Each Lender's payment to the Administrative Agent for the account of the
Issuing Lender pursuant to Section 2.9.3 [Disbursements, Reimbursement] shall be
deemed to be a payment in respect of its participation in such Letter of Credit Borrowing
(each a "Participation Advance") from such Lender in satisfaction of its participation
obligation under this Section 2.9.3.
2.9.4 Repayment of Participation Advances.
2.9.4.1 Upon (and only upon) receipt by the
Administrative Agent for the account of the Issuing Lender of immediately available funds
from the Borrower (i) in reimbursement of any payment made by the Issuing Lender under
the Letter of Credit with respect to which any Lender has made a Participation Advance to
the Administrative Agent, or (ii) in payment of interest on such a payment made by the
Issuing Lender under such a Letter of Credit, the Administrative Agent on behalf of the
Issuing Lender will pay to each Lender, in the same funds as those received by the
Administrative Agent, the amount of such Lender's Ratable Share of such funds, except the
Administrative Agent shall retain for the account of the Issuing Lender the amount of the
Ratable Share of such funds of any Lender that did not make a Participation Advance in
respect of such payment by the Issuing Lender.
2.9.4.2 If the Administrative Agent is required at any time
to return to any Loan Party, or to a trustee, receiver, liquidator, custodian, or any official in
any Insolvency Proceeding, any portion of any payment made by any Loan Party to the
Administrative Agent for the account of the Issuing Lender pursuant to this Section in
reimbursement of a payment made under any Letter of Credit or interest or fees thereon,
each Lender shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent for the account of the Issuing Lender the amount of its Ratable Share
of any amounts so returned by the Administrative Agent plus interest thereon from the date
such demand is made to the date such amounts are returned by such Lender to the
Administrative Agent, at a rate per annum equal to the Federal Funds Effective Rate (or,
for any payment in an Alternate Currency, the Overnight Rate) in effect from time to time.
2.9.5 Documentation. Each Loan Party agrees to be bound by the
terms of the Issuing Lender's application and agreement for letters of credit and the Issuing
Lender's written regulations and customary practices relating to letters of credit, though
such interpretation may be different from such Loan Party's own. In the event of a conflict
between such application or agreement and this Agreement, this Agreement shall govern.
It is understood and agreed that, except in the case of gross negligence or willful
misconduct, the Issuing Lender shall not be liable for any error, negligence and/or
mistakes, whether of omission or commission, in following any Loan Party's instructions
or those contained in the Letters of Credit or any modifications, amendments or
supplements thereto.
2.9.6 Determinations to Honor Drawing Requests. In
determining whether to honor any request for drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to determine that the
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documents and certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such Letter of Credit.
2.9.7 Nature of Participation and Reimbursement Obligations.
Each Lender's obligation in accordance with this Agreement to make the Revolving Credit
Loans or Participation Advances, as contemplated by Section 2.9.3 [Disbursements,
Reimbursement], as a result of a drawing under a Letter of Credit, and the Obligations of
the Borrower to reimburse the Issuing Lender upon a draw under a Letter of Credit, shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with
the terms of this Section 2.9 under all circumstances, including the following
circumstances:
(i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Issuing Lender or any of its Affiliates, the
Borrower or any other Person for any reason whatsoever, or which any Loan Party may
have against the Issuing Lender or any of its Affiliates, any Lender or any other Person for
any reason whatsoever;
(ii) the failure of any Loan Party or any other Person to
comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in
Sections 2.1 [Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests;
Swing Loan Requests], 2.6 [Making Revolving Credit Loans and Swing Loans; Etc.] or 6.2
[Each Loan or Letter of Credit] or as otherwise set forth in this Agreement for the making
of a Revolving Credit Loan, it being acknowledged that such conditions are not required
for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make
Participation Advances under Section 2.9.3 [Disbursements, Reimbursement];
(iii) any lack of validity or enforceability of any Letter of
Credit;
(iv) any claim of breach of warranty that might be made by any
Loan Party or any Lender against any beneficiary of a Letter of Credit, or the existence of
any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any
Loan Party or any Lender may have at any time against a beneficiary, successor beneficiary
any transferee or assignee of any Letter of Credit or the proceeds thereof (or any Persons
for whom any such transferee may be acting), the Issuing Lender or its Affiliates or any
Lender or any other Person, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying transaction
between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any
Letter of Credit was procured);
(v) the lack of power or authority of any signer of (or any
defect in or forgery of any signature or endorsement on) or the form of or lack of validity,
sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument,
certificate or other document presented under or in connection with any Letter of Credit, or
any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any
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property or provision of services relating to a Letter of Credit, in each case even if the
Issuing Lender or any of its Affiliates has been notified thereof;
(vi) payment by the Issuing Lender or any of its Affiliates
under any Letter of Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit;
(vii) the solvency of, or any acts or omissions by, any
beneficiary of any Letter of Credit, or any other Person having a role in any transaction or
obligation relating to a Letter of Credit, or the existence, nature, quality, quantity,
condition, value or other characteristic of any property or services relating to a Letter of
Credit;
(viii) any failure by the Issuing Lender or any of its Affiliates to
issue any Letter of Credit in the form requested by any Loan Party, unless the Issuing
Lender has received written notice from such Loan Party of such failure within three
Business Days after the Issuing Lender shall have furnished such Loan Party and the
Administrative Agent a copy of such Letter of Credit and such error is material and no
drawing has been made thereon prior to receipt of such notice;
(ix) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of any Loan Party or Subsidiaries of
a Loan Party;
(x) any breach of this Agreement or any other Loan Document
by any party thereto;
(xi) the occurrence or continuance of an Insolvency
Proceeding with respect to any Loan Party;
(xii) the fact that an Event of Default or a Potential Default
shall have occurred and be continuing;
(xiii) the fact that the Expiration Date shall have passed or this
Agreement or the Commitments hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
2.9.8 Indemnity. The Borrower hereby agrees to protect,
indemnify, pay and save harmless the Issuing Lender and any of its Affiliates that has
issued a Letter of Credit from and against any and all claims, demands, liabilities, damages,
taxes, penalties, interest, judgments, losses, costs, charges and expenses (including
reasonable fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which the Issuing Lender or any of its Affiliates may incur or be subject to as a
consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result
of the gross negligence or willful misconduct of the Issuing Lender as determined by a final
non-appealable judgment of a court of competent jurisdiction.
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2.9.9 Liability for Acts and Omissions. As between any Loan
Party and the Issuing Lender, or the Issuing Lender's Affiliates, such Loan Party assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Lender shall not be responsible for any of the following, including
any losses or damages to any Loan Party or other Person or property relating therefrom: (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for an issuance of any such
Letter of Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged (even if the Issuing Lender or its Affiliates
shall have been notified thereof); (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter
of Credit, or any other party to which such Letter of Credit may be transferred, to comply
fully with any conditions required in order to draw upon such Letter of Credit or any other
claim of any Loan Party against any beneficiary of such Letter of Credit, or any such
transferee, or any dispute between or among any Loan Party and any beneficiary of any
Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss
or delay in the transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication
by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or (viii) any consequences arising from causes beyond the control of the
Issuing Lender or its Affiliates, as applicable, including any act or omission of any Official
Body, and none of the above shall affect or impair, or prevent the vesting of, any of the
Issuing Lender's or its Affiliates rights or powers hereunder. Nothing in the preceding
sentence shall relieve the Issuing Lender from liability for the Issuing Lender's gross
negligence or willful misconduct in connection with actions or omissions described in such
clauses (i) through (viii) of such sentence. In no event shall the Issuing Lender or its
Affiliates be liable to any Loan Party for any indirect, consequential, incidental, punitive,
exemplary or special damages or expenses (including attorneys' fees), or for any damages
resulting from any change in the value of any property relating to a Letter of Credit.
Without limiting the generality of the foregoing, the Issuing Lender and
each of its Affiliates (i) may rely on any oral or other communication believed in good faith
by the Issuing Lender or such Affiliate to have been authorized or given by or on behalf of
the applicant for a Letter of Credit, (ii) may honor any presentation if the documents
presented appear on their face substantially to comply with the terms and conditions of the
relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a
Letter of Credit, whether such dishonor was pursuant to a court order, to settle or
compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to
reimbursement to the same extent as if such presentation had initially been honored,
together with any interest paid by the Issuing Lender or its Affiliate; (iv) may honor any
drawing that is payable upon presentation of a statement advising negotiation or payment,
upon receipt of such statement (even if such statement indicates that a draft or other
52
document is being delivered separately), and shall not be liable for any failure of any such
draft or other document to arrive, or to conform in any way with the relevant Letter of
Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored
under the laws or practices of the place where such bank is located; and (vi) may settle or
adjust any claim or demand made on the Issuing Lender or its Affiliate in any way related
to any order issued at the applicant's request to an air carrier, a letter of guarantee or of
indemnity issued to a carrier or any similar document (each an "Order") and honor any
drawing in connection with any Letter of Credit that is the subject of such Order,
notwithstanding that any drafts or other documents presented in connection with such
Letter of Credit fail to conform in any way with such Letter of Credit.
In furtherance and extension and not in limitation of the specific provisions
set forth above, any action taken or omitted by the Issuing Lender or its Affiliates under or
in connection with the Letters of Credit issued by it or any documents and certificates
delivered thereunder, if taken or omitted in good faith, shall not put the Issuing Lender or
its Affiliates under any resulting liability to the Borrower or any Lender.
2.9.10 Issuing Lender Reporting Requirements. Each Issuing
Lender shall, on the first Business Day of each month, provide to Administrative Agent
and Borrower a schedule of the Letters of Credit issued by it, in form and substance
satisfactory to Administrative Agent, showing the date of issuance of each Letter of Credit,
the account party, the original face amount (if any), the applicable Alternate Currency if
not in Dollars, and the expiration date of any Letter of Credit outstanding at any time
during the preceding month, and any other information relating to such Letter of Credit that
the Administrative Agent may request.
2.10 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:
(i) fees shall cease to accrue on the unfunded portion of the
Commitment of such Defaulting Lender pursuant to Section 2.3 [Commitment Fees];
(ii) the Commitment and outstanding Loans of such
Defaulting Lender shall not be included in determining whether the Required Lenders have
taken or may take any action hereunder (including any consent to any amendment, waiver
or other modification pursuant to Section 10.1 [Modifications, Amendments or Waivers]);
provided, that this clause (ii) shall not apply to the vote of a Defaulting Lender in the case
of an amendment, waiver or other modification requiring the consent of such Lender
pursuant to the terms of this Agreement;
(iii) if any Swing Loans are outstanding or any Letter of Credit
Obligations exist at the time such Lender becomes a Defaulting Lender, then:
(a) all or any part of the outstanding Swing Loans and
Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the
non-Defaulting Lenders in accordance with their respective Ratable Shares but only to the
53
extent that (x) the Revolving Facility Usage does not exceed the total of all non-Defaulting
Lenders' Revolving Credit Commitments, and (y) no Potential Default or Event of Default
has occurred and is continuing at such time;
(b) if the reallocation described in clause (a) 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 outstanding Swing
Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the
Borrower's obligations corresponding to such Defaulting Lender's Letter of Credit
Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in a
deposit account held at the Administrative Agent for so long as such Letter of Credit
Obligations are outstanding;
(c) if the Borrower cash collateralizes any portion of
such Defaulting Lender's Letter of Credit Obligations pursuant to clause (b) above, the
Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to
Section 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Lender's Letter of
Credit Obligations during the period such Defaulting Lender's Letter of Credit Obligations
are cash collateralized;
(d) if the Letter of Credit Obligations of the
non-Defaulting Lenders are reallocated pursuant to clause (a) above, then the fees payable
to the Lenders pursuant to Section 2.9.2 [Letter of Credit Fees] shall be adjusted in
accordance with such non-Defaulting Lenders' Ratable Share; and
(e) if all or any portion of such Defaulting Lender's
Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to
clause (a) or (b) above, then, without prejudice to any rights or remedies of the Issuing
Lender or any other Lender hereunder, all Letter of Credit Fees payable under Section 2.9.2
[Letter of Credit Fees] with respect to such Defaulting Lender's Letter of Credit
Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender)
until and to the extent that such Letter of Credit Obligations are reallocated and/or cash
collateralized; and
(iv) so long as such Lender is a Defaulting Lender, PNC shall
not be required to fund any Swing Loans and the Issuing Lender shall not be required to
issue, amend or increase any Letter of Credit, unless the Issuing Lender is satisfied that the
related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations
will be one hundred percent (100%) covered by the Revolving Credit Commitments of the
non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in
accordance with Section 2.10(iii), and participating interests in any newly made Swing
Loan or any newly issued or increased Letter of Credit shall be allocated among
non-Defaulting Lenders in a manner consistent with Section 2.10(iii)(a) (and such
Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event with respect to a parent company of any Lender shall occur
following the date hereofClosing Date and for so long as such event shall continue, or (ii)
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PNC or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling
its obligations under one or more other agreements in which such Lender commits to
extend credit, PNC shall not be required to fund any Swing Loan and the Issuing Lender
shall not be required to issue, amend or increase any Letter of Credit, unless PNC or the
Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower
or such Lender, satisfactory to PNC or the Issuing Lender, as the case may be, to defease
any risk to it in respect of such Lender hereunder.
In the event that the Administrative Agent, the Borrower, PNC and the Issuing Lender
agree in writing that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the
parties hereto, and the Ratable Share of the Swing Loans and Letter of Credit Obligations
of the Lenders shall be readjusted to reflect the inclusion of such Lender's Commitment,
and on such date such Lender shall purchase at par such of the Loans of the other Lenders
(other than Swing Loans) as the Administrative Agent shall determine may be necessary in
order for such Lender to hold such Loans in accordance with its Ratable Share.
2.11 Utilization of Commitments in Optional Currencies.
2.11.1 Periodic Computations of Dollar Equivalent Amounts of
Revolving Credit Loans that are Optional Currency Loans and Letters of Credit
Outstanding; Repayment in Same Currency. For purposes of determining utilization of the
Revolving Credit Commitments, the Administrative Agent will determine the Dollar
Equivalent amount of (i) the outstanding and proposed Revolving Credit Loans that are
Optional Currency Loans and Letters of Credit to be denominated in an Alternate Currency
as of the requested Borrowing Date or date of issuance, as the case may be, (ii) the
outstanding Letter of Credit Obligations denominated in an Alternate Currency as of the
last Business Day of each month, and (iii) the outstanding Revolving Credit Loans
denominated in an Optional Currency as of the end of each Interest Period (each such date
under clauses (i) through (iii), and any other date on which the Administrative Agent
determines it is necessary or advisable to make such computation, in its sole discretion, is
referred to as a "Computation Date"). Unless otherwise provided in this Agreement or
agreed to by the Administrative Agent and the Company, each Loan and Reimbursement
Obligation shall be repaid or prepaid in the same currency in which the Loan or
Reimbursement Obligation was made.
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2.11.2 European Monetary Union.
(i) Payments In Euros Under Certain Circumstances. If (i)
any Optional Currency ceases to be lawful currency of the nation issuing the same and is
replaced by the Euro or (ii) any Optional Currency and the Euro are at the same time
recognized by any governmental authority of the nation issuing such currency as lawful
currency of such nation and the Administrative Agent or the Required Lenders shall so
request in a notice delivered to the Borrower, then any amount payable hereunder by any
party hereto in such Optional Currency shall instead be payable in the Euro and the amount
so payable shall be determined by translating the amount payable in such Optional
Currency to the Euro at the exchange rate established by that nation for the purpose of
implementing the replacement of the relevant Optional Currency by the Euro (and the
provisions governing payments in Optional Currencies in this Agreement shall apply to
such payment in the Euro as if such payment in the Euro were a payment in an Optional
Currency). Prior to the occurrence of the event or events described in clause (i) or (ii) of
the preceding sentence, each amount payable hereunder in any Optional Currency will,
except as otherwise provided herein, continue to be payable only in that currency.
(ii) Additional Compensation Under Certain Circumstances.
The Borrower agrees, at the request of any Lender, to compensate such Lender for any loss,
cost, expense or reduction in return that such Lender shall reasonably determine shall be
incurred or sustained by such Lender as a result of the replacement of any Optional
Currency by the Euro and that would not have been incurred or sustained but for the
transactions provided for herein. A certificate of any Lender setting forth such Lender's
determination of the amount or amounts necessary to compensate such Lender shall be
delivered to the Borrower and shall be conclusive absent manifest error so long as such
determination is made on a reasonable basis. The Borrower shall pay such Lender the
amount shown as due on any such certificate within ten (10) days after receipt thereof.
(iii) Requests for Additional Optional Currencies. The
Borrower may deliver to the Administrative Agent a written request that Revolving Credit
Loans hereunder also be permitted to be made in any other lawful currency (other than
Dollars), in addition to the currencies specified in the definition of "Optional Currency"
herein, provided that such currency must be freely traded in the offshore interbank foreign
exchange markets, freely transferable, freely convertible into Dollars and available to the
Lenders in the Relevant Interbank Market. The Administrative Agent will promptly notify
the Lenders of any such request promptly after the Administrative Agent receives such
request. The Administrative Agent will promptly notify the Borrower of the acceptance or
rejection by the Administrative Agent and each of the Lenders of the Borrower's request.
The requested currency shall be approved as an Optional Currency hereunder only if the
Administrative Agent and all of the Lenders approve of the Borrower's request.
2.12 Increase in Revolving Credit Commitments.2.12 Increase in Revolving
Credit Commitments
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2.12.1 Increasing Lenders and New Lenders. The Borrower may,
at any time and from time to time after the Closing Date, request that (1) the current
Lenders increase their Revolving Credit Commitments (any current Lender which elects to
increase its Revolving Credit Commitment shall be referred to as an "Increasing Lender")
or (2) one or more new lenders (each, a "New Lender") join this Agreement and provide a
Revolving Credit Commitment hereunder, subject to the following terms and conditions:
(i) No Obligation to Increase. No current Lender shall be
obligated to increase its Revolving Credit Commitment and any increase in the Revolving
Credit Commitment by any current Lender shall be in the sole discretion of such current
Lender.
(ii) Defaults. There shall exist no Event of Default or
Potential Default on the effective date of such increase after giving effect to such increase.
(iii) Aggregate Revolving Credit Commitments. After giving
effect to such increase, the total Revolving Credit Commitments shall not exceed Two
Hundred Fifty Million and 00/100 Dollars ($250,000,000.00).
(iv) Multiple Options. The Borrower may request an increase
pursuant to this Section 2.12 [Increase in Revolving Credit Commitments] up to two (2)
times after the Closing Date during the term of this Agreement; provided, however, subject
to the other terms of this Section 2.12 [Increase in Revolving Credit Commitments], each
such increase shall be in an amount equal to or greater than Twenty Million and 00/100
Dollars ($20,000,000.00) (or, if less, the difference of (a) Fifty Million and 00/100 Dollars
($50,000,000.00) minus (b) the aggregate increases in the Revolving Credit Commitments
theretofore requested).
(v) Resolutions. The Loan Parties shall deliver to the
Administrative Agent in a form reasonably acceptable to the Administrative Agent, on or
before the effective date of such increase, certifications of their corporate secretaries (or
other authorized officer) with attached resolutions certifying that the increase in the
Revolving Credit Commitment has been approved by such Loan Parties.
(vi) Notes and Other Documents. The Borrower shall execute
and deliver (1) to each Increasing Lender a replacement revolving credit Note reflecting
the new amount of such Increasing Lender's Revolving Credit Commitment after giving
effect to the increase (and any prior Note issued to such Increasing Lender shall be deemed
to be terminated and returned to the Borrower), (2) to each New Lender a revolving credit
Note reflecting the amount of such New Lender's Revolving Credit Commitment and (3)
an amendment or modification to this Agreement providing for such increased or
additional Revolving Credit Commitments, to be executed by the Borrower, the
Administrative Agent and any Lenders (including any New Lender) agreeing to increase
their existing Revolving Credit Commitment or extend a new Revolving Credit
Commitment, as the case may be, along with such additional Loan Documents (including,
without limitation, legal opinion(s) as shall be required by the Administrative Agent in its
reasonable discretion.
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(vii) Approval of New Lenders. Any New Lender shall be
subject to the approval of the Administrative Agent, which approval shall not be
unreasonably withheld.
(viii) Increasing Lenders. Each Increasing Lender shall confirm
its agreement to increase its Revolving Credit Commitment pursuant to an
acknowledgement in a form acceptable to the Administrative Agent, signed by it and the
Borrower and delivered to the Administrative Agent at least five (5) days before the
effective date of such increase.
(ix) New Lenders; Joinder. Each New Lender shall execute a
lender joinder in form and substance reasonably satisfactory to the Administrative Agent
pursuant to which such New Lender shall join and become a party to this Agreement and
the other Loan Documents with a Revolving Credit Commitment in the amount set forth in
such lender joinder.
2.12.2 Treatment of Outstanding Loans.
2.12.2.1 Repayment of Outstanding Loans; Borrowing of
New Loans. On the effective date of such increase, the Borrower shall repay all Loans then
outstanding, subject to the Borrower's indemnity obligations under Section 4.10
[Indemnity]; provided that it may borrow new Loans with a Borrowing Date on such date.
Each of the Lenders shall participate in any new Loans made on or after such date in
accordance with their respective Ratable Shares after giving effect to the increase in
Revolving Credit Commitments contemplated by this Section 2.12 [Increase in Revolving
Credit Commitments].
2.12.2.2 Outstanding Letters of Credit; Repayment of
Outstanding Loans; Borrowing of New Loans. On the effective date of such increase, each
Increasing Lender and each New Lender (i) will be deemed to have purchased a
participation in each then outstanding Letter of Credit equal to its Ratable Share of such
Letter of Credit and the participation of each other Lender in such Letter of Credit shall be
adjusted accordingly and (ii) will acquire, (and will pay to the Administrative Agent, for
the account of each Lender, in immediately available funds, an amount equal to) its Ratable
Share of all outstanding Participation Advances.. [Reserved].
3. INTEREST RATES
3.1 Interest Rate Options. The Borrower shall pay interest in respect of the
outstanding unpaid principal amount of the Loans as selected by it from the Base Rate
Option or Euro-Rate Option set forth below applicable to the Loans, it being understood
that, subject to the provisions of this Agreement, the Borrower may select different Interest
Rate Options and different Interest Periods to apply simultaneously to the Loans
comprising different Borrowing Tranches and may convert to or renew one or more
Interest Rate Options with respect to all or any portion of the Loans comprising any
Borrowing Tranche; provided that there shall not be at any one time outstanding more than
ten (10) Borrowing Tranches in the aggregate among all of the Loans and provided further
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that if an Event of Default or Potential Default exists and is continuing, the Borrower may
not request, convert to, or renew the Euro-Rate Option for any Loans and the Required
Lenders may demand that all existing Borrowing Tranches bearing interest under the
Euro-Rate Option shall be converted immediately to the Base Rate Option, subject to the
obligation of the Borrower to pay any indemnity under Section 4.10 [Indemnity] in
connection with such conversion. If at any time the designated rate applicable to any Loan
made by any Lender exceeds such Lender's highest lawful rate, the rate of interest on such
Lender's Loan shall be limited to such Lender's highest lawful rate. Interest on the
principal amount of each Optional Currency Loan shall be paid by the Borrower in such
Optional Currency.
3.1.1 Revolving Credit Interest Rate Options. The Borrower shall
have the right to select from the following Interest Rate Options applicable to the
Revolving Credit Loans, provided that any Loan made in an Optional Currency shall bear
interest at the Euro-Rate:
(i) Revolving Credit Base Rate Option: A fluctuating rate per
annum equal to the Base Rate plus the Applicable Margin, such interest rate to change
automatically from time to time effective as of the effective date of each change in the Base
Rate; or
(ii) Revolving Credit Euro-Rate Option: A rate per annum
equal to the Euro-Rate as determined for each applicable Interest Period plus the
Applicable Margin.
3.1.2 Term Loan Interest Rate Options. The Borrower shall have
the right to select from the following Interest Rate Options applicable to the Term Loans:
(i) Term Facility Base Rate Option: A fluctuating rate per
annum equal to the Base Rate plus two and one-half percent (2.50%), such interest rate to
change automatically from time to time effective as of the effective date of each change in
the Base Rate; or
(ii) Term Facility Euro-Rate Option: A rate per annum equal
to the Euro-Rate as determined for each applicable Interest Period plus three and one-half
percent (3.50%).
3.1.3 Swing Loan Interest Rate Options. Each Swing Loan shall
bear interest at a rate per annum equal to (i) the Base Rate plus the Applicable Margin, such
interest rate to change automatically from time to time effective as of the effective date of
each change in the Base Rate, or (ii) the Daily LIBOR Rate plus the Applicable Margin for
Loans bearing interest under the Euro-Rate Option, such interest rate to change
automatically from time to time effective as of each change in the Daily LIBOR Rate.
3.1.33.1.4 Rate Calculations; Rate Quotations. All
computations of interest for Base Rate Loans (including Base Rate Loans determined by
reference to the Daily LIBOR Rate) shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of fees and interest
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shall be made on the basis of a 360-day year and actual days elapsed or, in the case of
interest in respect of Loans denominated in Optional Currencies as to which market
practice differs from the foregoing, in accordance with such market practice. The
Borrower may call the Administrative Agent on or before the date on which a Loan
Request is to be delivered to receive an indication of the rates then in effect, but it is
acknowledged that such projection shall not be binding on the Administrative Agent or the
Lenders nor affect the rate of interest which thereafter is actually in effect when the
election is made.
3.2 Interest Periods. At any time when the Borrower shall select, convert to or
renew a Euro-Rate Option, the Borrower shall notify the Administrative Agent thereof by
delivering a Loan Request to the Administrative Agent (i) at least three (3) Business Days
prior to the effective date of such Euro-Rate Option with respect to a Loan denominated in
Dollars, and (ii) at least four (4) Business Days prior to the effective date of such Euro-Rate
Option with respect to an Optional Currency Loan. The notice shall specify an Interest
Period during which such Interest Rate Option shall apply. Notwithstanding the preceding
sentence, the following provisions shall apply to any selection of, renewal of, or
conversion to a Euro-Rate Option:
3.2.1 Amount of Borrowing Tranche. Each Borrowing Tranche
of Loans under the Euro-Rate Option shall be in integral multiples of, and not less than, the
respective amounts set forth in Section 2.5.1 [Revolving Credit Loan Requests]; and
3.2.2 Renewals. In the case of the renewal of a Euro-Rate Option
at the end of an Interest Period, the first day of the new Interest Period shall be the last day
of the preceding Interest Period, without duplication in payment of interest for such day.
3.2.3 No Conversion of Optional Currency Loans. No Optional
Currency Loan may be converted into a Loan with a different Interest Rate Option, or a
Loan denominated in a different Optional Currency.
3.3 Interest After Default. To the extent permitted by Law, upon the
occurrence of an Event of Default and until such time such Event of Default shall have
been cured or waived, at the discretion of the Administrative Agent or upon written
demand by the Required Lenders to the Administrative Agent:
3.3.1 Letter of Credit Fees, Interest Rate. The Letter of Credit
Fees and the rate of interest for each Loan otherwise applicable pursuant to Section 2.9.2
[Letter of Credit Fees] or Section 3.1 [Interest Rate Options], respectively, shall be
increased by two percent (2.0%) per annum;
3.3.2 Other Obligations. Each other Obligation hereunder if not
paid when due shall bear interest at a rate per annum equal to the sum of the rate of interest
applicable to Revolving Credit Loans under the Base Rate Option plus an additional two
percent (2.0%) per annum from the time such Obligation becomes due and payable and
until it is Paid In Full; and
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3.3.3 Acknowledgment. The Borrower acknowledges that the
increase in rates referred to in this Section 3.3 reflects, among other things, the fact that
such Loans or other amounts have become a substantially greater risk given their default
status and that the Lenders are entitled to additional compensation for such risk; and all
such interest shall be payable by Borrower upon demand by Administrative Agent.
3.4 Rates Unascertainable; Illegality; Increased Costs; Deposits Not Available;
Optional Currency Not Available.
3.4.1 Unascertainable. If on any date on which a Euro-Rate
would otherwise be determined, the Administrative Agent shall have determined that:
(i) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(ii) a contingency has occurred which materially and
adversely affects the Relevant Interbank Market relating to the Euro-Rate,
then the Administrative Agent shall have the rights specified in Section 3.4.4
[Administrative Agent's and Lender's Rights].
3.4.2 Illegality; Increased Costs. If at any time any Lender shall
have determined that:
(i) the making, maintenance or funding of any Loan to which
a Euro-Rate Option applies has been made impracticable or unlawful by compliance by
such Lender in good faith with any Law or any interpretation or application thereof by any
Official Body or with any request or directive of any such Official Body (whether or not
having the force of Law), or
(ii) such Euro-Rate Option will not adequately and fairly
reflect the cost to such Lender of the establishment or maintenance of any such Loan,
then the Administrative Agent shall have the rights specified in Section 3.4.4
[Administrative Agent's and Lender's Rights].
3.4.3 Optional Currency Not Available. If at any time the
Administrative Agent shall have determined that a fundamental change has occurred in the
foreign exchange or interbank markets with respect to any Optional Currency (including,
without limitation, changes in national or international financial, political or economic
conditions or currency exchange rates or exchange controls), then (i) the Administrative
Agent shall notify the Borrower of any such determination, and (ii) the Administrative
Agent shall have the rights specified in Section 3.4.4 [Administrative Agent's and Lender's
Rights].
3.4.4 Administrative Agent's and Lender's Rights. In the case of
any event specified in Section 3.4.1 [Unascertainable] above, the Administrative Agent
shall promptly so notify the Lenders and the Borrower thereof, in the case of an event
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specified in Section 3.4.2 [Illegality; Increased Costs], and in the case of an event specified
in Section 3.4.3 [Optional Currency Not Available] above, such Lender shall promptly so
notify the Administrative Agent and endorse a certificate to such notice as to the specific
circumstances of such notice, and the Administrative Agent shall promptly send copies of
such notice and certificate to the other Lenders and the Borrower. Upon such date as shall
be specified in such notice (which shall not be earlier than the date such notice is given),
the obligation of (A) the Lenders, in the case of such notice given by the Administrative
Agent, or (B) such Lender, in the case of such notice given by such Lender, to allow the
Borrower to select, convert to or renew a Euro-Rate Option or select an Optional Currency,
as applicable, shall be suspended until the Administrative Agent shall have later notified
the Borrower, or such Lender shall have later notified the Administrative Agent, of the
Administrative Agent's or such Lender's, as the case may be, determination that the
circumstances giving rise to such previous determination no longer exist. If at any time the
Administrative Agent makes a determination under Section 3.4.1 [Unascertainable] and
the Borrower has previously notified the Administrative Agent of its selection of,
conversion to or renewal of a Euro-Rate Option and such Interest Rate Option has not yet
gone into effect, such notification shall be deemed to provide for selection of, conversion
to or renewal of the Base Rate Option otherwise available with respect to such Loans. If
any Lender notifies the Administrative Agent of a determination under Section 3.4.2
[Illegality; Increased Costs; Deposits Not Available], the Borrower shall, subject to the
Borrower's indemnification Obligations under Section 4.10 [Indemnity], as to any Loan of
the Lender to which a Euro-Rate Option applies, on the date specified in such notice either
(i) as applicable, convert such Loan to the Base Rate Option otherwise available with
respect to such Loan or select a different Optional Currency or Dollars, or (ii) prepay such
Loan in accordance with Section 4.6 [Voluntary Prepayments]. Absent due notice from the
Borrower of conversion or prepayment, such Loan shall automatically be converted to the
Base Rate Option otherwise available with respect to such Loan upon such specified date.
If the Administrative Agent makes a determination under Section 3.4.3 [Optional Currency
Not Available] then, until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such determination no longer exist, (i) the availability of
Loans in the affected Optional Currency shall be suspended, (ii) the outstanding Loans in
such affected Optional Currency shall be converted into Dollar Loans (in an amount equal
to the Dollar Equivalent of such outstanding Optional Currency Loans) (x) on the last day
of the then current Interest Period if the Lenders may lawfully continue to maintain Loans
in such Optional Currency to such day, or (y) immediately if the Lenders may not lawfully
continue to maintain Loans in such Optional Currency, and interest thereon shall thereafter
accrue at the Base Rate Option.
3.5 Selection of Interest Rate Options. If the Borrower fails to select a new
Interest Period to apply to any Borrowing Tranche of Loans under the Euro-Rate Option at
the expiration of an existing Interest Period applicable to such Borrowing Tranche in
accordance with the provisions of Section 3.2 [Interest Periods], the Borrower shall be
deemed to have converted such Borrowing Tranche to the Base Rate Option as applicable
to Revolving Credit Loans commencing upon the last day of the existing Interest Period,
and such currency conversion to U.S. Dollars shall be determined by the Administrative
Agent at the time of such conversion.
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4. PAYMENTS
4.1 Payments. All payments and prepayments to be made in respect of
principal, interest, Commitment Fees, Letter of Credit Fees, Administrative Agent's Fee or
other fees or amounts due from the Borrower hereunder shall be payable prior to 1:00 p.m.
on the date when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Borrower, and without set-off, counterclaim or
other deduction of any nature, and an action therefor shall immediately accrue. Such
payments shall be made to the Administrative Agent at the Principal Office for the account
of PNC with respect to the Swing Loans and for the ratable accounts of the Lenders with
respect to the Revolving Credit Loans in U.S. Dollars and Term Loans in immediately
available funds, and the Administrative Agent shall promptly distribute such amounts to
the Lenders in immediately available funds; provided that in the event payments are
received by 1:00 p.m. by the Administrative Agent with respect to the Loans and such
payments are not distributed to the Lenders on the same day received by the Administrative
Agent, the Administrative Agent shall pay the Lenders interest at the Federal Funds
Effective Rate in the case of Loans or other amounts due in Dollars, or the Overnight Rate
in the case of Loans or other amounts due in an Optional Currency, with respect to the
amount of such payments for each day held by the Administrative Agent and not
distributed to the Lenders. The Administrative Agent's and each Lender's statement of
account, ledger or other relevant record shall, in the absence of manifest error, be
conclusive as the statement of the amount of principal of and interest on the Loans and
other amounts owing under this Agreement (including the Equivalent Amounts of the
applicable currencies where such computations are required) and shall be deemed an
"account stated". All payments of principal and interest made in respect of the Loans must
be repaid in the same currency (whether Dollars or the applicable Optional Currency) in
which such Loan was made and all Unpaid Drawings with respect to each Letter of Credit
shall be made in the same currency (whether Dollars or the applicable Alternate Currency)
in which such Letter of Credit was issued. The Administrative Agent may (but shall not be
obligated to) debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the applicable Borrower with the Administrative Agent.
4.2 Pro Rata Treatment of Lenders. Each borrowing of Revolving Credit Loans
shall be allocated to each Lender according to its Ratable Share, and each selection of,
conversion to or renewal of any Interest Rate Option and each payment or prepayment by
the Borrower with respect to principal, interest, Commitment Fees and Letter of Credit
Fees (but excluding the Administrative Agent's Fee and the Issuing Lender's fronting fee)
shall (except as otherwise may be provided with respect to a Defaulting Lender and except
as provided in Sections 3.4.4 [Administrative Agent's and Lender's Rights] in the case of an
event specified in Section 3.4 [Rate Unascertainable; Etc.], 4.6.2 [Replacement of a
Lender] or 4.8 [Increased Costs]) be payable ratably among the Lenders entitled to such
payment in accordance with the amount of principal, interest, Commitment Fees and Letter
of Credit Fees, as set forth in this Agreement. Notwithstanding any of the foregoing, each
borrowing or payment or prepayment by the Borrower of principal, interest, fees or other
amounts from the Borrower with respect to Swing Loans shall be made by or to PNC
according to Section 2.6.5 [Borrowings to Repay Swing Loans].
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4.3 Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff, counterclaim or banker's lien, by receipt of voluntary payment, by
realization upon security, or by any other non-pro rata source, obtain payment in respect of
any principal of or interest on any of its Loans or other obligations hereunder resulting in
such Lender's receiving payment of a proportion of the aggregate amount of its Loans and
accrued interest thereon or other such obligations greater than the pro-rata share of the
amount such Lender is entitled thereto, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Loans and such other obligations of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans and other amounts owing them, provided
that:
(i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by Law (including court order) to be paid by the
Lender or the holder making such purchase; and
(ii) the provisions of this Section 4.3 shall not be construed to
apply to (x) any payment made by the Loan Parties pursuant to and in accordance with the
express terms of the Loan Documents or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
Participation Advances to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section 4.3 shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against each Loan Party rights of setoff and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of each Loan
Party in the amount of such participation.
4.4 Presumptions by Administrative Agent. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or the Issuing Lender hereunder
that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Lender, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Lender, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or the Issuing Lender, with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate (or, for payments
in an Optional Currency, the Overnight Rate) and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
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4.5 Interest Payment Dates. Interest on Loans to which the Base Rate Option
applies shall be due and payable in arrears on each Payment Date. Interest on Loans to
which the Euro-Rate Option applies shall be due and payable on the last day of each
Interest Period for those Loans and, if such Interest Period is longer than three (3) Months,
also on the 90th day of such Interest Period. Interest on mandatory prepayments of
principal under Section 4.7 [Mandatory Prepayments] shall be due on the date such
mandatory prepayment is due. Interest on the principal amount of each Loan or other
monetary Obligation shall be due and payable on demand after such principal amount or
other monetary Obligation becomes due and payable (whether on the stated Expiration
Date, upon acceleration or otherwise).
4.6 Voluntary Prepayments.
4.6.1 Right to Prepay. The Borrower shall have the right at its
option from time to time to prepay the Loans in whole or part without premium or penalty
(except as provided in Section 4.6.2 [Replacement of a Lender] below, in Section
4.8[Increased Costs] and Section 4.10 [Indemnity]). Whenever the Borrower desires to
prepay any part of the Loans, it shall provide a prepayment notice to the Administrative
Agent by 1:00 p.m. (A) at least one (1) Business Day prior to the date of prepayment of the
Revolving Credit Loans or Term Loans denominated in Dollars, and(B) at least four (4)
Business Days prior to the date of prepayment of any Optional Currency Loans, or (C) no
later than 1:00 p.m. on the date of prepayment of Swing Loans, in each case setting forth
the following information:
(w) the date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(x) a statement indicating the application of the prepayment
between the Revolving Credit Loans and, Swing Loans and Term Loans;
(y) a statement indicating the application of the prepayment
between Loans to which the Base Rate Option applies and Loans and Optional
Currencies to which the Euro-Rate Option applies; and
(z) the total principal amount of such prepayment, which shall
not be less than the lesser of (i) the Revolving Facility Usage or (ii) Five Hundred
Thousand for any Swing Loan or Five Million and 00/100 Dollars ($5,000,000.00)
for any Revolving Credit Loan or Term Loan.
All prepayment notices shall be irrevocable. The principal amount of the
Loans for which a prepayment notice is given, together with interest on such principal
amount, shall be due and payable on the date specified in such prepayment notice as the
date on which the proposed prepayment is to be made. All Term Loan prepayments
permitted pursuant to this Section 4.6.1 [Right to Prepay] shall be applied to the unpaid
installments of principal of the Term Loans in the inverse order of scheduled maturities.
Except as provided in Section 3.4.4 [Administrative Agent's and Lender's Rights], if the
Borrower prepays a Loan but fails to specify the applicable Borrowing Tranche which the
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Borrower is prepaying, the prepayment shall be applied (i) first to the Revolving Credit
Loans and then to Term Loans; and (ii) after giving effect to the allocations in the
foregoing clause (i), first to the Revolving Credit Loans and Term Loans to which the Base
Rate Option applies, then to Revolving Credit Loans which are not Optional Currencyin
Dollars and the Term Loans to which the Euro-Rate Option applies, then to Optional
Currency Loans, and then to Swing Loans. Any prepayment hereunder shall be subject to
the Borrower's Obligation to indemnify the Lenders under Section 4.10 [Indemnity].
Prepayments shall be made in the currency in which such Loan was made unless otherwise
directed by the Administrative Agent.
4.6.2 Replacement of a Lender. In the event any Lender (i) gives
notice under Section 3.4 [Rate Unascertainable, Etc.], (ii) requests compensation under
Section 4.8 [Increased Costs], or requires the Borrower to pay any Indemnified Taxes or
additional amount to any Lender or any Official Body for the account of any Lender
pursuant to Section 4.9 [Taxes], (iii) is a Defaulting Lender, (iv) becomes subject to the
control of an Official Body (other than normal and customary supervision), or (v) is a
Non-Consenting Lender referred to in Section 10.1 [Modifications, Amendments or
Waivers], then in any such event the Borrower may, at its sole expense, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 10.8 [Successors and Assigns]), all of its interests, rights (other than
existing rights to payments pursuant to Sections 4.8 [Increased Costs] or 4.9 [Taxes]) and
obligations under this Agreement and the related Loan Documents to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(i) the Borrower shall have paid to the Administrative Agent
the assignment fee specified in Section 10.8 [Successors and Assigns];
(ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and Participation Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 4.10 [Indemnity]) from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim
for compensation under Section 4.8.1 [Increased Costs Generally] or payments required to
be made pursuant to Section 4.9 [Taxes], such assignment will result in a reduction in such
compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable Law.
A Lender shall not be required to make any such assignment or delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
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4.6.3 Designation of a Different Lending Office. If any Lender
requests compensation under Section 4.8 [Increased Costs], or the Borrower is or will be
required to pay any Indemnified Taxes or additional amounts to any Lender or any Official
Body for the account of any Lender pursuant to Section 4.9 [Taxes], then such Lender shall
(at the request of the Borrower) use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 4.8 [Increased Costs] or Section 4.9 [Taxes], as the case may
be, in the future, and (ii) would not subject such Lender to any material unreimbursed cost
or expense and would not otherwise be materially disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment
4.7 Mandatory Prepayments.
4.7.1 Currency Fluctuations. If on any Computation Date the
Revolving Facility Usage is equal to or greater than the Revolving Credit Commitments as
a result of a change in exchange rates between one (1) or more Optional Currencies and
Dollars, then the Administrative Agent shall notify the Borrower of the same. The
Borrower shall pay or prepay (subject to Borrower's indemnity obligations under Sections
4.8 [Increased Costs] and 5.10 [Indemnity]) within one (1) Business Day after receiving
such notice such that the Revolving Facility Usage shall not exceed the aggregate
Revolving Credit Commitments after giving effect to such payments or prepayments.
4.7.2 Application Among Interest Rate Options.4.7.2
Consolidated Cash Balance. If, at the end of any Business
Day, there is Revolving Facility Usage outstanding and the Consolidated Cash Balance
exceeds the Consolidated Cash Balance Threshold, then the Borrower shall, no later than
the second (2nd) Business Day thereafter, (x) prepay Revolving Credit Loans and Swing
Loans outstanding on such Business Day in an aggregate principal amount equal to the
lesser of (1) the difference between (a) the Consolidated Cash Balance at the end of such
applicable Business Day, minus (b) the Consolidated Cash Balance Threshold (such
difference, the “Excess Cash”) and (2) the aggregate amount of Revolving Credit Loans
and Swing Loans then outstanding and (y) if any Excess Cash remains after prepaying all
of the Revolving Credit Loans and Swing Loans in accordance with the foregoing clause
(1), to the extent there are any outstanding Letter of Credit Obligations, pay to the
Administrative Agent an amount equal to such remaining Excess Cash to be held as cash
collateral on terms and conditions acceptable to the Administrative Agent and the
applicable Issuing Lender.
4.7.3 Asset Sales and Recovery Events. Within five (5) Business
Days of the receipt by any Loan Party or any of its Subsidiaries of Net Cash Proceeds from
(a) the Asset Sale described in clause (v) of Section 7.2.7 [Dispositions of Assets or
Subsidiaries] and (b) any other Asset Sale or Recovery Event when the Net Cash Proceeds
of any such other Asset Sale or Recovery Event or the aggregate Net Cash Proceeds of all
such other Asset Sales and Recovery Events occurring on or after the First Amendment
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Effective Date exceed One Million and 00/100 Dollars ($1,000,000.00), the Borrower
shall, in each case, make a mandatory prepayment of principal on the Loans of all such Net
Cash Proceeds to be applied in accordance with Section 4.7.7 [Application Among Loans
and Interest Rate Options], together with accrued interest on such principal amount. The
foregoing shall not be deemed to be implied consent to any such Asset Sale, if applicable,
otherwise prohibited by the terms and conditions hereof.
4.7.4 Additional Indebtedness. Within five (5) Business Days of
the receipt by any Loan Party or any of its Subsidiaries of Net Cash Proceeds of
Indebtedness incurred by such Loan Party and/or such Subsidiary, other than Indebtedness
permitted under Section 7.2.1 [Indebtedness], the Borrower shall make a mandatory
prepayment of principal on the Loans of all such Net Cash Proceeds to be applied in
accordance with Section 4.7.7 [Application Among Loans and Interest Rate Options],
together with accrued interest on such principal amount. The foregoing shall not be
deemed to be implied consent to any such incurrence of Indebtedness otherwise prohibited
by the terms and conditions hereof.
4.7.5 Additional Equity. Within five (5) Business Days of the
receipt by any Loan Party or any of its Subsidiaries of Net Cash Proceeds resulting from
additional equity interests being issued by any Loan Party or any of its Subsidiaries, the
Borrower shall make a mandatory prepayment of principal on the Loans of all such Net
Cash Proceeds to be applied in accordance with Section 4.7.7 [Application Among Loans
and Interest Rate Options], together with accrued interest on such principal amount. The
foregoing shall not be deemed to be implied consent to any such issuance of equity
interests otherwise prohibited by the terms and conditions hereof.
4.7.6 Excess Cash Flow. The Borrower shall make a mandatory
prepayment of principal on the Loans to be applied in accordance with Section 4.7.7
[Application Among Loans and Interest Rate Options] for each fiscal year commencing
with the fiscal year ending March 31, 2019, payable upon delivery of the financial
statements to Administrative Agent referred to in and required by Section 7.3.2 [Annual
Financial Statements] for such fiscal year but in any event not later than ninety (90) days
after the end of each such fiscal year, in each case in an amount equal to (i) seventy-five
percent (75%) of Excess Cash Flow if the Leverage Ratio calculated as of the end of such
fiscal year is greater than or equal to 3.50 to 1.00, or (ii) fifty percent (50%) of Excess Cash
Flow if the Leverage Ratio calculated as of the end of such fiscal year is less than 3.50 to
1.00. In the event that the financial statements are not so delivered, then a calculation
based upon estimated amounts shall be made by the Administrative Agent upon which
calculation the Borrower shall make the prepayment required by this Section 4.7.6, subject
to adjustment when the financial statements are delivered to the Administrative Agent as
required hereby. The calculation made by the Administrative Agent shall not be deemed a
waiver of any rights Administrative Agent or Lenders may have as a result of the failure by
the Loan Parties to deliver such financial statements.
4.7.7 Application Among Loans and Interest Rate Options All.
All prepayments required pursuant to Section 4.7.3 [Asset Sales and Recovery Events]
through Section 4.7.6 [Excess Cash Flow] shall first be applied to the Term Loans by
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application to the unpaid installments of principal in the inverse order of scheduled
maturities, and then to Revolving Credit Loans. After giving effect to the allocations in the
immediately preceding sentence, all prepayments required pursuant to this Section 4.7
[Mandatory Prepayments] shall first be applied among the Interest Rate Options to the
principal amount of the Loans subject to the Base Rate Option, then to Loans denominated
in Dollars and subject to a Euro-Rate Option, then to the Optional Currency Loans. In
accordance with Section 4.10 [Indemnity], the Borrower shall indemnify the Lenders for
any loss or expense, including loss of margin, incurred with respect to any such
prepayments applied against Loans subject to a Euro-Rate Option on any day other than the
last day of the applicable Interest Period.
4.8 Increased Costs.
4.8.1 Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by, any Lender
(except any reserve requirement, which is addressed separately in this Section 4.8) or the
Issuing Lender;
(ii) subject any Recipient to any Taxes (other than (A)
Indemnified Taxes, (B) Taxes described in clauses (ii) through (iv) of the definition of
Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of
credit, commitments, or other obligations, or its deposits, reserves, other liabilities or
capital attributable thereto; or
(iii) impose on any Lender, the Issuing Lender or the Relevant
Interbank Market any other condition, cost or expense (other than Taxes) affecting this
Agreement or Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such
other Recipient of making, converting to, continuing or maintaining any Loan or of
maintaining its obligation to make any such Loan, or to increase the cost to such Lender,
the Issuing Lender or such other Recipient of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender, the
Issuing Lender or other Recipient hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender, the Issuing Lender or other Recipient, the
Borrower will pay to such Lender, the Issuing Lender or other Recipient, as the case may
be, such additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction suffered.
4.8.2 Capital Requirements. If any Lender or the Issuing Lender
determines that any Change in Law affecting such Lender or the Issuing Lender or any
lending office of such Lender or such Lender's or the Issuing Lender's holding company, if
any, regarding capital or liquidity requirements has or would have the effect of reducing
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the rate of return on such Lender's or the Issuing Lender's capital or on the capital of such
Lender's or the Issuing Lender's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit or Swing Loans held by, such Lender, or the Letters of Credit issued by
the Issuing Lender, to a level below that which such Lender or the Issuing Lender or such
Lender's or the Issuing Lender's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Lender's policies
and the policies of such Lender's or the Issuing Lender's holding company with respect to
capital adequacy and liquidity), then from time to time the Borrower will pay to such
Lender or the Issuing Lender, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Lender or such Lender's or the Issuing Lender's
holding company for any such reduction suffered.
4.8.3 Certificates for Reimbursement; Repayment of Outstanding
Loans; Borrowing of New Loans. A certificate of a Lender or the Issuing Lender
setting forth the amount or amounts necessary to compensate such Lender or the Issuing
Lender or its holding company, as the case may be, as specified in Sections 4.8.1
[Increased Costs Generally] or 4.8.2 [Capital Requirements] and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Lender, as the case may be, the amount shown as due on any such certificate within
ten (10) Business Days after receipt thereof.
4.8.4 Delay in Requests. Failure or delay on the part of any
Lender or the Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand such
compensation, provided that the Borrower shall not be required to compensate a Lender or
the Issuing Lender pursuant to this Section for any increased costs incurred or reductions
suffered more than six (6) months prior to the date that such Lender or the Issuing Lender,
as the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Lender's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the six (6) month period referred to above shall be
extended to include the period of retroactive effect thereof).
4.8.5 Additional Reserve Requirements. The Borrower shall pay
to each Lender (i) as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including eurocurrency funds or deposits,
additional interest on the unpaid principal amount of each Loan under the Euro-Rate
Option equal to the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive absent
manifest error), and (ii) as long as such Lender shall be required to comply with any reserve
ratio requirement under Regulation D or under any similar, successor or analogous
requirement of the Board of Governors of the Federal Reserve System (or any successor)
or any other central banking or financial regulatory authority imposed in respect of the
maintenance of the Commitments or the funding of the Loans under the Euro-Rate Option,
such additional costs (expressed as a percentage per annum and rounded upwards, if
necessary, to the nearest five decimal places) equal to the actual costs allocated to such
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Commitment or Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive absent manifest error), which in each case shall be due
and payable on each date on which interest is payable on such Loan; provided that in each
case the Borrower shall have received at least ten days’ prior notice (with a copy to the
Administrative Agent) of such additional interest or costs from such Lender. If a Lender
fails to give notice ten days prior to the relevant Payment Date, such additional interest or
costs shall be due and payable ten days from receipt of such notice.
4.9 Taxes.
4.9.1 Issuing Lender. For purposes of this Section 4.9, the term
"Lender" includes the Issuing Lender and the term "applicable Law" includes FATCA.
4.9.2 Payments Free of Taxes. Any and all payments by or on
account of any obligation of any Loan Party under any Loan Document shall be without
deduction or withholding for any Taxes, except as required by applicable Law. If any
applicable Law (as determined in the good faith discretion of an applicable Withholding
Agent) requires the deduction or withholding of any Tax from any such payment by a
Withholding Agent, then the applicable Withholding Agent shall be entitled to make such
deduction or withholding and shall timely pay the full amount deducted or withheld to the
relevant Official Body in accordance with applicable Law and, if such Tax is an
Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as
necessary so that after such deduction or withholding has been made (including such
deductions and withholdings applicable to additional sums payable under this Section 4.9
[Taxes]) the applicable Recipient receives an amount equal to the sum it would have
received had no such deduction or withholding been made.
4.9.3 Payment of Other Taxes by the Loan Parties. The Loan
Parties shall timely pay to the relevant Official Body in accordance with applicable Law, or
at the option of the Administrative Agent timely reimburse it for the payment of, any Other
Taxes.
4.9.4 Indemnification by the Loan Parties. The Loan Parties shall
jointly and severally indemnify each Recipient, within ten (10) days after demand therefor,
for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section 4.9 [Taxes]) payable or
paid by such Recipient or required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Official Body. A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
4.9.5 Indemnification by the Lenders. Each Lender shall
severally indemnify the Administrative Agent, within ten (10) days after demand therefor,
for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any
Loan Party has not already indemnified the Administrative Agent for such Indemnified
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Taxes and without limiting the obligation of any of the Loan Parties to do so), (ii) any
Taxes attributable to such Lender's failure to comply with the provisions of Section 10.8.4
[Participations] relating to the maintenance of a Participant Register, and (iii) any
Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the
Administrative Agent in connection with any Loan Document, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Official Body. A certificate as to
the amount of such payment or liability delivered to any Lender by the Administrative
Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such
Lender under any Loan Document or otherwise payable by the Administrative Agent to the
Lender from any other source against any amount due to the Administrative Agent under
this Section 4.9.5 [Indemnification by the Lenders].
4.9.6 Evidence of Payments. As soon as practicable after any
payment of Taxes by any Loan Party to an Official Body pursuant to this Section 4.9
[Taxes], such Loan Party shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Official Body evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
4.9.7 Status of Lenders.
(i) Any Lender that is entitled to an exemption from or
reduction of withholding Tax with respect to payments made under any Loan Document
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably
requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation reasonably requested by the Borrower or the Administrative
Agent as will permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if reasonably requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable
Law or reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in Section
4.9.7(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender's reasonable
judgment such completion, execution or submission would subject such Lender to any
material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the
event that the Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to the
Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
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reasonable request of the Borrower or the Administrative Agent), executed originals of IRS
Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally
entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), whichever of the
following is applicable:
(i) in the case of a Foreign Lender claiming the
benefits of an income tax treaty to which the United States is a party (x)
with respect to payments of interest under any Loan Document, executed
originals of IRS Form W-8BEN establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the "interest" article
of such tax treaty and (y) with respect to any other applicable payments
under any Loan Document, IRS Form W-8BEN establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the
"business profits" or "other income" article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under Section 881(c) of the
Code, (x) a certificate substantially in the form of Exhibit 4.9.7(A) to the
effect that such Foreign Lender is not (A) a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in Section 881(c)(3)(C) of the
Code (a "U.S. Tax Compliance Certificate") and (y) executed originals of
IRS Form W-8BEN; or
(iv) to the extent a Foreign Lender is not the
beneficial owner, executed originals of IRS Form W-8IMY, accompanied
by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance
Certificate substantially in the form of Exhibit 4.9.7(B) or Exhibit 4.9.7(C),
IRS Form W-9, and/or other certification documents from each beneficial
owner, as applicable; provided that if the Foreign Lender is a partnership
and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide
a U.S. Tax Compliance Certificate substantially in the form of Exhibit
4.9.7(D) on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally
entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
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reasonable request of the Borrower or the Administrative Agent), executed originals of any
other form prescribed by applicable Law as a basis for claiming exemption from or a
reduction in U.S. federal withholding Tax, duly completed, together with such
supplementary documentation as may be prescribed by applicable Law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction required
to be made; and
(D) if a payment made to a Lender under any Loan
Document would be subject to U.S. federal withholding Tax imposed by FATCA if such
Lender were to fail to comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such
Lender shall deliver to the Borrower and the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by the Borrower or the
Administrative Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as may be necessary for
the Borrower and the Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such Lender's obligations under
FATCA or to determine the amount to deduct and withhold from such payment. Solely for
purposes of this clause (D), "FATCA" shall include any amendments made to FATCA
after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires
or becomes obsolete or inaccurate in any respect, it shall update such form or certification
or promptly notify the Borrower and the Administrative Agent in writing of its legal
inability to do so.
4.9.8 Treatment of Certain Refunds. If any Recipient determines,
in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to
which it has been indemnified pursuant to this Section 4.9 [Taxes] (including by the
payment of additional amounts pursuant to this Section 4.9 [Taxes]), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section 4.9 [Taxes] with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and
without interest (other than any interest paid by the relevant Official Body with respect to
such refund). Such indemnifying party, upon the request of such indemnified party
incurred in connection with obtaining such refund, shall repay to such indemnified party
the amount paid over pursuant to this Section 4.9.8 [Treatment of Certain Refunds] (plus
any penalties, interest or other charges imposed by the relevant Official Body) in the event
that such indemnified party is required to repay such refund to such Official Body.
Notwithstanding anything to the contrary in this Section 4.9.8 [Treatment of Certain
Refunds]), in no event will the indemnified party be required to pay any amount to an
indemnifying party pursuant to this Section 4.9.8 [Treatment of Certain Refunds] the
payment of which would place the indemnified party in a less favorable net after-Tax
position than the indemnified party would have been in if the Tax subject to
indemnification and giving rise to such refund had not been deducted, withheld or
otherwise imposed and the indemnification payments or additional amounts with respect to
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such Tax had never been paid. This paragraph shall not be construed to require any
indemnified party to make available its Tax returns (or any other information relating to its
Taxes that it deems confidential) to the indemnifying party or any other Person.
4.9.9 Survival. Each party's obligations under this Section 4.9
[Taxes] shall survive the resignation of the Administrative Agent or any assignment of
rights by, or the replacement of, a Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all Obligations.
4.10 Indemnity. In addition to the compensation or payments required by
Section 4.8 [Increased Costs]or Section 4.9 [Taxes], the Borrower shall indemnify each
Lender against all liabilities, losses or expenses (including loss of anticipated profits, any
foreign exchange losses and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from fees payable to
terminate the deposits from which such funds were obtained or from the performance of
any foreign exchange contract) which such Lender sustains or incurs as a consequence of
any:
(i) payment, prepayment, conversion or renewal of any Loan
to which a Euro-Rate Option applies on a day other than the last day of the corresponding
Interest Period (whether or not such payment or prepayment is mandatory, voluntary or
automatic and whether or not such payment or prepayment is then due), or any voluntary
prepayment without the required notice,
(ii) attempt by the Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or part any Loan Requests under Section 2.5
[Revolving Credit Loan Requests; Swing Loan Requests] or Section 3.2 [Interest Periods]
or notice relating to prepayments under Section 4.6 [Voluntary Prepayments], or
(iii) any assignment of any Loan to which a Euro-Rate Option
applies on a day other than the last day of the corresponding Interest Period as a result of a
request of the Borrower pursuant to Section 4.6.2 [Replacement of a Lender].
If any Lender sustains or incurs any such loss or expense, it shall from time
to time notify the Borrower of the amount determined in good faith by such Lender (which
determination may include such assumptions, allocations of costs and expenses and
averaging or attribution methods as such Lender shall deem reasonable) to be necessary to
indemnify such Lender for such loss or expense. Such notice shall set forth in reasonable
detail the basis for such determination. Such amount shall be due and payable by the
Borrower to such Lender ten (10) Business Days after such notice is given.
4.11 Settlement Date Procedures. In order to minimize the transfer of funds
between the Lenders and the Administrative Agent, the Borrower may borrow, repay and
reborrow Swing Loans and PNC may make Swing Loans as provided in Section 2.1.2
[Swing Loan Commitments] hereof during the period between Settlement Dates. The
Administrative Agent shall notify each Lender of its Ratable Share of the total of the
Revolving Credit Loans and the Swing Loans (each a "Required Share"). On such
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Settlement Date, each Lender shall pay to the Administrative Agent the amount equal to
the difference between its Required Share and its Revolving Credit Loans, and the
Administrative Agent shall pay to each Lender its Ratable Share of all payments made by
the Borrower to the Administrative Agent with respect to the Revolving Credit Loans. The
Administrative Agent shall also effect settlement in accordance with the foregoing
sentence on the proposed Borrowing Dates for Revolving Credit Loans and on any
mandatory prepayment date as provided for herein and may at its option effect settlement
on any other Business Day. These settlement procedures are established solely as a matter
of administrative convenience, and nothing contained in this Section 4.11 shall relieve the
Lenders of their obligations to fund Revolving Credit Loans on dates other than a
Settlement Date pursuant to Section 2.1.2 [Swing Loan Commitment]. The Administrative
Agent may at any time at its option for any reason whatsoever require each Lender to pay
immediately to the Administrative Agent such Lender's Ratable Share of the outstanding
Revolving Credit Loans and each Lender may at any time require the Administrative Agent
to pay immediately to such Lender its Ratable Share of all payments made by the Borrower
to the Administrative Agent with respect to the Revolving Credit Loans.
4.12 Currency Conversion Procedures for Judgments. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due hereunder in any
currency (the "Original Currency") into another currency (the "Other Currency"), the
parties hereby agree, to the fullest extent permitted by Law, that the rate of exchange used
shall be that at which in accordance with normal lending procedures the Administrative
Agent could purchase the Original Currency with the Other Currency after any premium
and costs of exchange on the Business Day preceding that on which final judgment is
given.
4.13 Indemnity in Certain Events. The obligation of Borrower in respect of any
sum due from Borrower to any Lender hereunder shall, notwithstanding any judgment in
an Other Currency, whether pursuant to a judgment or otherwise, be discharged only to the
extent that, on the Business Day following receipt by any Lender of any sum adjudged to
be so due in such Other Currency, such Lender may in accordance with normal lending
procedures purchase the Original Currency with such Other Currency. If the amount of the
Original Currency so purchased is less than the sum originally due to such Lender in the
Original Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment or payment, to indemnify such Lender against such loss.
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties. The Loan Parties, jointly and severally,
represent and warrant to the Administrative Agent and each of the Lenders as follows:
5.1.1 Organization and Qualification; Power and Authority;
Compliance With Laws; Title to Properties; Event of Default. Each Loan Party and
each Subsidiary of each Loan Party (i) is a corporation, partnership or limited liability
company duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (ii) has the lawful power to own or lease its properties and to
engage in the business it presently conducts or proposes to conduct, except to the extent the
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failure to hold such power would not constitute a Material Adverse Change, (iii) is duly
licensed or qualified and in good standing in each jurisdiction where the property owned or
leased by it or the nature of the business transacted by it or both makes such licensing or
qualification necessary, except to the extent the failure to be so qualified or hold such
license would not constitute a Material Adverse Change, (iv) has full power to enter into,
execute, deliver and carry out this Agreement and the other Loan Documents to which it is
a party, to incur the Indebtedness contemplated by the Loan Documents and to perform its
Obligations under the Loan Documents to which it is a party, and all such actions have
been duly authorized by all necessary proceedings on its part, (v) is in compliance in all
material respects with all applicable Laws (other than Environmental Laws which are
specifically addressed in Section 5.1.14 [Environmental Matters]) in all jurisdictions in
which such Loan Party or Subsidiary of any Loan Party is presently doing business except
to the extent the failure to do so would not constitute a Material Adverse Change, and (vi)
has good and marketable title to or valid leasehold interest in all properties, assets and other
rights which it purports to own or lease or which are reflected as owned or leased on its
books and records, free and clear of all Liens and encumbrances except Permitted Liens
and except to the extent the failure to hold such title or interest would not constitute a
Material Adverse Change. No Event of Default or Potential Default exists or is continuing.
No Loan Party is an EEA Financial Institution.
5.1.2 Subsidiaries; Investment Companies. Schedule 5.1.2 states
(i) the name of each of the Borrower's Subsidiaries, its jurisdiction of organization and the
amount, percentage and type of equity interests in such Subsidiary (the "Subsidiary
Equity Interests"), and (ii) any options, warrants or other rights outstanding to purchase
any such Subsidiary Equity Interests. The Borrower and each Subsidiary of the Borrower
has good and marketable title to all of the Subsidiary Equity Interests it purports to own,
free and clear in each case of any Lien and all such Subsidiary Equity Interests have been
validly issued, and all Subsidiary Equity Interests represented by capital stock in a
corporation are fully paid and nonassessable. None of the Loan Parties or Subsidiaries of
any Loan Party is an "investment company" registered or required to be registered under
the Investment Company Act of 1940 or under the "control" of an "investment company"
as such terms are defined in the Investment Company Act of 1940 and shall not become
such an "investment company" or under such "control."
5.1.3 Validity and Binding Effect. This Agreement and each of
the other Loan Documents executed and delivered by a Loan Party (i) has been duly and
validly executed and delivered by each Loan Party party thereto, and (ii) constitutes, or will
constitute, legal, valid and binding obligations of each Loan Party which is or will be a
party thereto, enforceable against such Loan Party in accordance with its terms, except to
the extent enforceability of any such Loan Document may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the enforceability of
creditors’ rights generally or limiting the right of specific performance.
5.1.4 No Conflict; Material Agreements; Consents. Neither the
execution and delivery of this Agreement or the other Loan Documents by any Loan Party
nor the consummation of the transactions herein or therein contemplated or compliance
with the terms and provisions hereof or thereof by any of them will conflict with, constitute
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a default under or result in any breach of (i) the terms and conditions of the certificate of
incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate
of formation, limited liability company agreement or other organizational documents of
any Loan Party or (ii) any Law or any agreement or instrument which the Borrower is
required to file pursuant to Item 601 of Regulation S-K of the Securities Act of 1933, as
amended, or any material order, writ, judgment, injunction or decree to which any Loan
Party or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound
or to which it is subject, or result in the creation or enforcement of any Lien, charge or
encumbrance whatsoever upon any property (now or hereafter acquired) of any Loan Party
or any of its Subsidiaries (other than Liens granted under the Loan Documents). There is
no default under such agreement or instrument (referred to above) and none of the Loan
Parties or their Subsidiaries is bound by any contractual obligation, or subject to any
restriction in any organizational document, or any requirement of Law, in each case, which
constitutes a Material Adverse Change. Except for filings and recordings contemplated by
the Loan Documents and filings required by the SEC, no consent, approval, exemption,
order or authorization of, or a registration or filing with, any Official Body or any other
Person is required by any Law or any agreement in connection with the execution, delivery
and carrying out of this Agreement and the other Loan Documents.
5.1.5 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Loan Party, threatened against such
Loan Party or any Subsidiary of such Loan Party at law or in equity before any Official
Body which if adversely decided would constitute a Material Adverse Change. None of
the Loan Parties or any Subsidiaries of any Loan Party is in violation of any order, writ,
injunction or any decree of any Official Body which constitutes a Material Adverse
Change.
5.1.6 Financial Statements.
(i) Historical Statements. The Borrower has delivered to the
Administrative Agent copies of its (a) audited consolidated year-end financial statements
for and as of the end of the fiscal year ended March 31, 2015 and (b) unaudited
consolidated interim financial statements as of the fiscal quarter ended June 30, 2015, as of
the fiscal quarter ended September 30, 2015 and as of the fiscal quarter ended December
31, 2015, in each case for the applicable fiscal year to such date (all such annual and
interim statements being collectively referred to as the "Statements"). The Statements
were compiled from the books and records maintained by the Borrower's management, are
correct and complete and fairly represent the consolidated financial condition of the
Borrower and its Subsidiaries as of the respective dates thereof and the results of
operations for the fiscal periods then ended and have been prepared in accordance with
GAAP consistently applied, subject (in the case of the interim statements) to normal
year-end audit adjustments.
(ii) Financial Projections. The Borrower has delivered
to the Administrative Agent summary projected financial statements (including, without
limitation, statements of operations and cash flow together with a detailed explanation of
the assumptions used in preparing such projected financial statements) of the Borrower and
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its Subsidiaries on a consolidated basis for the period from the Closing Date through March
31, 2021 derived from various assumptions of the Borrower’s management (the
"Projections"). The Projections were prepared in good faith based on reasonable
assumptions at the time, it being understood that such Projections are (a) as to future events
and not to be viewed as facts, (b) are subject to significant uncertainties and contingencies,
many of which are beyond the Loan Parties’ control, and (c) no assurance can be given that
the Projections will be realized and the actual results may differ in a material way.
(iii) Accuracy of Financial Statements. Neither the Borrower
nor any Subsidiary of the Borrower has any liabilities, contingent or otherwise, or forward
or long-term commitments that are not disclosed in the Statements or in the notes thereto,
and except as disclosed therein there are no unrealized or anticipated losses from any
commitments of the Borrower or any Subsidiary of the Borrower which constitutes a
Material Adverse Change. Since March 31, 2015, no Material Adverse Change has
occurred.
5.1.7 Margin Stock. None of the Loan Parties or any Subsidiaries
of any Loan Party engages or intends to engage principally, or as one of its important
activities, in the business of extending credit for the purpose, immediately, incidentally or
ultimately, of purchasing or carrying margin stock (within the meaning of Regulation U, T
or X as promulgated by the Board of Governors of the Federal Reserve System). No part of
the proceeds of any Loan has been or will be used, immediately, incidentally or ultimately,
to purchase or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or which is inconsistent with the provisions of the
regulations of the Board of Governors of the Federal Reserve System. None of the Loan
Parties or any Subsidiary of any Loan Party holds or intends to hold margin stock in such
amounts that more than twenty-five (25%) of the reasonable value of the assets of any Loan
Party or Subsidiary of any Loan Party are or will be represented by margin stock.
5.1.8 Full Disclosure. Neither this Agreement nor any other Loan
Document, nor any certificate, statement, agreement or other documents furnished to the
Administrative Agent or any Lender in connection herewith or therewith, in each case on
the respective dates thereof, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein and therein,
in light of the circumstances under which they were made and at such times as they were
made, not misleading. As of the ClosingFirst Amendment Effective Date, there is no fact
known to any Loan Party which materially adversely affects the business, property, assets,
financial condition or results of operations of the Loan Parties taken as a whole which has
not been set forth in this Agreement or in the certificates, statements, agreements or other
documents furnished in writing to the Administrative Agent and the Lenders prior to or
aton the date hereofFirst Amendment Effective Date in connection with the transactions
contemplated hereby.
5.1.9 Taxes. All material federal, state, local and other tax returns
required to have been filed with respect to each Loan Party and each Subsidiary of each
Loan Party have been filed, and payment or adequate provision has been made for the
payment of all material taxes, fees, assessments and other governmental charges which
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have or may become due pursuant to said returns or to assessments received, except to the
extent that such material taxes, fees, assessments and other charges are being contested in
good faith by appropriate proceedings diligently conducted and for which such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall have been made.
5.1.10 Patents, Trademarks, Copyrights, Licenses, Etc. Each Loan
Party and each Subsidiary of each Loan Party owns, possesses or has the rights to use all
patents, trademarks, service marks, trade names, copyrights, licenses, registrations,
franchises, permits and rights necessary to own and operate its properties and to carry on its
business as presently conducted and currently planned to be conducted by such Loan Party
or Subsidiary, without known possible, alleged or actual conflict with the rights of others,
except to the extent the failure to own, possess or otherwise have the right to use such
properties or rights with or without conflict does not constitute a Material Adverse Change.
5.1.11 Liens in the Collateral. Until the Release Date, theThe
Liens in the Collateral granted to the Administrative Agent for the benefit of the Lenders
pursuant to the Patent, Trademark and Copyright Security Agreement, the Pledge
Agreement and the Security Agreement constitute and will continue to constitute valid and
enforceable security interests under the UCC. All filing fees and other expenses in
connection with the perfection of such Liens have been or will be paid by the Borrower.
5.1.12 Insurance. The properties of each Loan Party and each of its
Subsidiaries are insured pursuant to policies and other bonds which are valid and in full
force and effect and which provide adequate coverage from reputable and financially
sound insurers in amounts sufficient to insure the assets and risks of each such Loan Party
and Subsidiary in accordance with prudent business practice in the industry of such Loan
Parties and Subsidiaries.
5.1.13 ERISA Compliance.
Except as would not constitute a Material Adverse Change:
(i) Each Pension Plan is in compliance in all respects with the
applicable provisions of ERISA, the Code and other federal or state Laws.
(ii) Each Pension Plan that is intended to qualify under
Section 401(a) of the Code is so qualified and, to the best knowledge of Borrower, nothing
has occurred which would prevent, or cause the loss of, such qualification.
(iii) Borrower and each member of the ERISA Group have
made all required contributions to each Pension Plan subject to Sections 412 or 430 of the
Code, and no application for a funding waiver or an extension of any amortization period
pursuant to Sections 412 or 430 of the Code has been made with respect to any Pension
Plan.
(iv) (a) No ERISA Event has occurred or is reasonably
expected to occur; (b) except as described in Borrower’s annual and quarterly reports filed
with the SEC, no Pension Plan has any unfunded pension liability (i.e., excess of benefit
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liabilities over the current value of that Pension Plan's assets, determined pursuant to the
assumptions used for funding the Pension Plan for the applicable plan year in accordance
with Section 430 of the Code); (c) neither Borrower nor any member of the ERISA Group
has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (d) neither Borrower nor any member of the ERISA Group has incurred,
or reasonably expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) under Section
4201 of ERISA, with respect to a Multiemployer Plan; (e) neither Borrower nor any
member of the ERISA Group has received notice pursuant to Section 4242(a)(1)(B) of
ERISA that a Multiemployer Plan is in reorganization and that additional contributions are
due to the Multiemployer Plan pursuant to Section 4243 of ERISA; and (f) neither
Borrower nor any member of the ERISA Group has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.1.14 Environmental Matters. Each Loan Party and each
Subsidiary of each Loan Party is in compliance with applicable Environmental Laws
except to the extent that any non-compliance would not in the aggregate reasonably be
expected to result in a Material Adverse Change.
5.1.15 Solvency. On the ClosingFirst Amendment Effective Date
and after giving effect to the initial Loans made and Letters of Credit issued
hereundertransactions contemplated by the First Amendment, the Loan Parties taken as a
whole are solvent.
5.1.16 Anti-Terrorism Laws. (i) No Covered Entity is a
Sanctioned Person, and (ii) no Covered Entity, either in its own right or through any third
party, (a) has any of its assets in a Sanctioned Country or in the possession, custody or
control of a Sanctioned Person in violation of any Anti-Terrorism Law, (b) does business in
or with, or derives any of its income from investments in or transactions with, any
Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (c)
engages in any dealings or transactions prohibited by any Anti-Terrorism Law.
5.2 Updates to Schedules; Designation of Immaterial Domestic Subsidiaries;
Removal of Immaterial Domestic Subsidiaries.
5.2.1 Updates to Schedules.. Should any of the information or
disclosures provided on any of the Schedules attached hereto become outdated or incorrect
in any material respect (excluding any information or disclosures made in accordance with
a provision that speaks only as of a specific date), the Borrower shall promptly provide the
Administrative Agent in writing with such revisions or updates to such Schedule as may be
necessary or appropriate to update or correct same. No Schedule shall be deemed to have
been amended, modified or superseded by any such correction or update, nor shall any
breach of warranty or representation resulting from the inaccuracy or incompleteness of
any such Schedule be deemed to have been cured thereby, unless and until the Required
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Lenders, in their sole and absolute discretion, shall have accepted in writing such revisions
or updates to such Schedule; provided however, that the Borrower may update Schedule
5.1.2 without any Lender approval in connection with any transaction permitted under
Sections 7.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], 7.2.7 [Dispositions
of Assets or Subsidiaries] and 7.2.9 [Subsidiaries and Joint Ventures].
5.2.2 Designation of Immaterial Domestic Subsidiaries.5.2.2
Designation of Immaterial Domestic Subsidiaries Each
Immaterial Domestic Subsidiary approved by the Administrative Agent on the
Closing Date is listed on Schedule 1.1(I). Subsequent to the Closing Date, the
Borrower may, by written notice delivered to the Administrative Agent, within the
parameters set forth in the definition of Immaterial Domestic Subsidiary, designate
as an Immaterial Domestic Subsidiary either (a) an existing Domestic Subsidiary that
is a Guarantor or (b) a Domestic Subsidiary of the Loan Parties formed or acquired in
accordance with Section 7.2.9 [Subsidiaries and Joint Ventures] or Section 7.2.6
[Liquidations, Mergers, Consolidations, Acquisitions], in each case subject to (i) the
requirement that such designation not cause an Event of Default or Potential Default,
and (ii) the requirement that the Borrower deliver to the Administrative Agent an
updated Schedule 1.1(I). Such designation shall be effective, subject to satisfaction
of the aforementioned conditions, on the date such updated Schedule 1.1(I) is
received by the Administrative Agent. To the extent that an existing Guarantor is
effectively designated as an Immaterial Domestic Subsidiary, the Administrative
Agent shall promptly release any Liens it has, if any, in such Domestic Subsidiary’s
assets that secure the Obligations. Each Domestic Subsidiary which has not
specifically been designated as an Immaterial Domestic Subsidiary in accordance
with the terms hereof shall be a Guarantor under this Agreement.. [Reserved].
5.2.3 Removal of Immaterial Domestic Subsidiaries.5.2.3
Removal of Immaterial Domestic Subsidiaries Subsequent
to the Closing Date, the Borrower (a) may at its option within the parameters set forth
in the definition of Immaterial Domestic Subsidiary, or (b) shall, if required by
Section 7.1.11 [Immaterial Domestic Subsidiaries], in either case by written notice
delivered to the Administrative Agent, remove any Domestic Subsidiary that is listed
as an Immaterial Domestic Subsidiary on Schedule 1.1(I) from such Schedule, in
each case subject to (i) the requirement that such designation not cause an Event of
Default or Potential Default, and (ii) the requirement that the Borrower deliver to the
Administrative Agent an updated Schedule 1.1(I). Any such Domestic Subsidiary
removed from Schedule 1.1(I) in accordance with the foregoing sentence shall be
required to join this Agreement and the other applicable Loan Documents as a
Guarantor in accordance with Section 7.2.9 [Subsidiaries and Joint Ventures], and
such removal shall be effective, subject to satisfaction of the aforementioned
conditions, on the date such Subsidiary joins this Agreement and such other Loan
Documents in accordance with Section 10.15 [Joinder of Guarantors]. . [Reserved].
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6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Lender to make Loans and of the Issuing Lender to issue
Letters of Credit hereunder is subject to the satisfaction of the following further conditions:
6.1 First Loans and Letters of Credit.
6.1.1 Deliveries. On the Closing Date, the Administrative Agent
shall have received each of the following in form and substance satisfactory to the
Administrative Agent:
(i) A certificate of the Borrower signed by an Authorized
Officer, dated the Closing Date stating that (w) all representations and warranties of the
Loan Parties set forth in this Agreement are true and correct in all material respects, (x) the
Loan Parties are in compliance with each of the covenants and conditions hereunder in all
material respects, (y) no Event of Default or Potential Default exists, and (z) no Material
Adverse Change has occurred since the date of the last audited financial statements of the
Borrower delivered to the Administrative Agent;
(ii) A certificate dated the Closing Date and signed by the
Secretary or an Assistant Secretary or other Authorized Officer of each of the Loan Parties,
certifying as appropriate as to: (a) true copies of all corporate or other organizational action
taken by each Loan Party relative to this Agreement and the other Loan Documents; (b) the
names of the Authorized Officers authorized to sign the Loan Documents and their true
signatures; and (c) copies of its organizational documents as in effect on the Closing Date
certified by the appropriate state official where such documents are filed in a state office
together with certificates from the appropriate state officials as to the continued existence
and good standing of each Loan Party in each state where organized and those additional
material jurisdictions where certain Loan Parties are qualified to do business as requested
by the Administrative Agent;
(iii) This Agreement and each of the other Loan Documents
duly executed by each Person party thereto and all appropriate financing statements
required by law and appropriate stock powers and certificates evidencing the pledged
Collateral;
(iv) Written opinions of counsel for the Loan Parties, dated the
Closing Date and in form and substance satisfactory to the Administrative Agent;
(v) Evidence that adequate insurance required to be
maintained under this Agreement is in full force and effect, with special endorsements
attached thereto in form and substance satisfactory to the Administrative Agent and its
counsel naming the Administrative Agent as additional insured or lender loss payee, as
applicable;
(vi) A duly completed Compliance Certificate signed by an
Authorized Officer of Borrower evidencing (a) a Leverage Ratio as of the Closing Date
after giving effect to the Loans to be made hereunder on the Closing Date of not greater
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than 3.75 to 1.00 and (b) an Interest Coverage Ratio calculated as of March 31, 2016 of not
less than 3.50 to 1.00 (the "Closing Compliance Certificate");
(vii) Lien searches with respect to the Loan Parties in
acceptable scope and with results to the reasonable satisfaction of the Administrative
Agent;
(viii) An executed landlord's waiver or other lien waiver
agreement from the lessor, warehouse operator or other applicable Person for each leased
Collateral location to the extent requested and required to be received by Administrative
Agent;
(ix) Evidence that all Indebtedness not permitted under
Section 7.2.1 [Indebtedness] shall have been paid in full (and all commitments in respect
thereof terminated) and that all necessary termination statements, release statements and
other releases in connection with all Liens (other than Permitted Liens) have been filed or
satisfactory arrangements have been made for such filing (including payoff letters, if
applicable, in form and substance reasonably satisfactory to the Administrative Agent);
(x) The Statements and the Projections;
(xi) A certificate of an Authorized Officer of the Borrower as
to the Solvency of each of the Loan Parties taken as a whole after giving effect to the
transactions contemplated by this Agreement;
(xii) All material consents required to effectuate the
transactions contemplated hereby, if any;
(xiii) All documentation and other information required by bank
regulatory authorities under applicable "know-your-customer" and anti-money laundering
rules and regulations, including the USA Patriot Act; and
(xiv) Such other documents in connection with such
transactions as the Administrative Agent or its counsel may reasonably request.
6.1.2 Payment of Fees and Expenses. The Lenders, the
Administrative Agent and the joint lead arrangers shall have received all fees required to be
paid, and all expenses for which invoices have been presented (including the reasonable
fees and expenses of legal counsel), on or before the Closing Date.
6.2 Each Loan or Letter of Credit. At the time of making any Loans or issuing,
extending or increasing any Letters of Credit and after giving effect to the proposed
extensions of credit: (i) the representations, warranties of the Loan Parties set forth in this
Agreement and any other Loan Document shall then be true and correct in all material
respects (without duplication of any materiality qualifier contained therein) on such date
(except representations and warranties which expressly relate solely to an earlier date or
time, which representations and warranties shall be true and correct in all material respects
(without duplication of any materiality qualifier contained therein) on and as of the specific
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dates or times referred to therein), (ii) no Event of Default or Potential Default shall have
occurred and be continuing, (iii) the making of the Loans or issuance, extension or increase
of such Letter of Credit shall not contravene any Law applicable to any Loan Party or any
of the Lenders, (iv) the Borrower shall have delivered to the Administrative Agent a duly
executed and completed Loan Request or to the Issuing Lender an application for a Letter
of Credit, as the case may be, and (v) in the case of any Loan or Letter of Credit to be
denominated in an Optional Currency or Alternate Currency, there shall not have occurred
any change in national or international financial, political or economic conditions or
currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Lenders (in the case of any Loans to be denominated
in an Optional Currency) or the Issuing Lender (in the case of any Letter of Credit to be
denominated in an Alternate Currency) would make it impracticable for such Loan or
Letter of Credit to be denominated in the relevant Optional Currency or Alternate
Currency, as applicable and (vi) (a) the Consolidated Cash Balance immediately prior to
the making of such Loan or issuance of such Letter of Credit and (b) the pro forma
Consolidated Cash Balance immediately after giving effect to the making of such Loan or
the issuance of such Letter of Credit, in each case shall not exceed the Consolidated Cash
Balance Threshold.
7. COVENANTS
The Loan Parties, jointly and severally, covenant and agree that until Payment In
Full, the Loan Parties shall comply at all times with the following covenants:
7.1 Affirmative Covenants.
7.1.1 Preservation of Existence, Etc. Each Loan Party shall, and
shall cause each of its Subsidiaries to, maintain its legal existence as a corporation, limited
partnership or limited liability company and its license or qualification and good standing
in its jurisdiction of organization and in each other jurisdiction in which the failure to
maintain such license or qualification would constitute a Material Adverse Change, except
as otherwise expressly permitted in Section 7.2.6 [Liquidations, Mergers, Etc.].
7.1.2 Payment of Liabilities, Including Taxes, Etc. Each Loan
Party shall, and shall cause each of its Subsidiaries to, duly pay and discharge all liabilities
to which it is subject or which are asserted against it, promptly as and when the same shall
become due and payable, including all taxes, assessments and governmental charges upon
it or any of its properties, assets, income or profits, prior to the date on which penalties
attach thereto, except (i) to the extent that such liabilities, including taxes, assessments or
charges, are being contested in good faith and by appropriate and lawful proceedings
diligently conducted and for which such reserve or other appropriate provisions, if any, as
shall be required by GAAP shall have been made or (ii) where the failure to pay any such
liability would not constitute an Event of Default and would not constitute a Material
Adverse Change.
7.1.3 Maintenance of Insurance. Each Loan Party shall, and shall
cause each of its Subsidiaries to, insure its properties and assets against loss or damage by
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fire and such other insurable hazards as such assets are commonly insured (including fire,
extended coverage, property damage, workers' compensation, public liability and business
interruption insurance) and against other risks (including errors and omissions) in such
amounts as similar properties and assets are insured by prudent companies in similar
circumstances carrying on similar businesses, and with reputable and financially sound
insurers, including self-insurance to the extent customary. The Loan Parties shall comply
with the covenants and provide the endorsement set forth on Schedule 7.1.3 relating to
property and related insurance policies covering the Collateral.
7.1.4 Maintenance of Properties and Leases. Each Loan Party
shall, and shall cause each of its Subsidiaries to, maintain in good repair, working order and
condition (ordinary wear and tear excepted) in accordance with the general practice of
other businesses of similar character and size, all of those properties useful or necessary to
its business, and from time to time, such Loan Party will make or cause to be made all
appropriate repairs, renewals or replacements thereof, except to the extent that the failure
to so maintain or repair such properties would not constitute a Material Adverse Change.
7.1.5 Visitation Rights. Each Loan Party shall, and shall cause
each of its Subsidiaries to, permit any of the officers or authorized employees or
representatives of the Administrative Agent or any of the Lenders to visit and inspect any
of its properties during normal business hours and to examine and make excerpts from its
books and records and discuss its business affairs, finances and accounts with its officers,
all in such detail and at such times and as often as any of the Lenders may reasonably
request, provided that each Lender shall provide the Borrower and the Administrative
Agent with reasonable notice prior to any visit or inspection and shall use commercially
reasonable efforts to minimize interference with such Loan Party's or Subsidiary’s normal
business operations. In the event any Lender desires to conduct an audit of any Loan Party,
such Lender shall make a reasonable effort to conduct such audit contemporaneously with
any audit to be performed by the Administrative Agent. The foregoing obligations of the
Loan Parties and their Subsidiaries shall include Collateral audits and field examinations to
audit the Collateral. Such Collateral audits and such field examinations shall be conducted
by an independent examiner selected by the Administrative Agent and shall be at the sole
cost and expense of the Borrower. Notwithstanding the foregoing, such Collateral audits
and/or field examinations shall be conducted no more than one (1) time per fiscal year,
unless an Event of Default has occurred and is continuing (in which case, such frequency
limitation shall no longer apply).
7.1.6 Keeping of Records and Books of Account. The Borrower
shall, and shall cause each Subsidiary of the Borrower to, maintain and keep proper books
of record and account which enable the Borrower to issue financial statements in
accordance with GAAP and as otherwise required by applicable Laws of any Official Body
having jurisdiction over the Borrower, and in which full, true and correct entries shall be
made in all material respects of all its dealings and business and financial affairs.
7.1.7 Compliance with Laws; Use of Proceeds. Each Loan Party
shall, and shall cause each of its Subsidiaries to, comply with all applicable Laws,
including all Environmental Laws, in all respects; provided that it shall not be deemed to be
86
a violation of this Section 7.1.7 if any failure to comply with any Law would not result in
fines, penalties, remediation costs, other similar liabilities or injunctive relief which in the
aggregate would constitute a Material Adverse Change. The Loan Parties will use the
Letters of Credit and the proceeds of the Loans only in accordance with Section 2.8 [Use of
Proceeds] and as permitted by applicable Law.
7.1.8 Further Assurances. Each Loan Party shall, from time to
time until the Release Date, at its expense, faithfully preserve and protect the
Administrative Agent's Lien on and Prior Security Interest in the Collateral, and shall do
such other acts and things as the Administrative Agent in its sole discretion may deem
necessary or advisable from time to time, until the Release Date, in order to preserve,
perfect and protect the Liens granted under the Loan Documents and to exercise and
enforce its rights and remedies thereunder with respect to the Collateral.
7.1.9 Anti-Terrorism Laws; International Trade Law
Compliance. (a) No Covered Entity will become a Sanctioned Person, (b) no
Covered Entity, either in its own right or through any third party, will (A) have any of its
assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned
Person in violation of any Anti-Terrorism Law; (B) do business in or with, or derive any of
its income from investments in or transactions with, any Sanctioned Country or Sanctioned
Person in violation of any Anti-Terrorism Law; (C) engage in any dealings or transactions
prohibited by any Anti-Terrorism Law or (D) use the Loans to fund any operations in,
finance any investments or activities in, or, make any payments to, a Sanctioned Country or
Sanctioned Person in violation of any Anti-Terrorism Law, (c) the funds used to repay the
Obligations will not be derived from any unlawful activity, (d) each Covered Entity shall
comply with all Anti-Terrorism Laws, and (e) the Borrower shall promptly notify the
Administrative Agent in writing upon the occurrence of a Reportable Compliance Event.
7.1.10 Keepwell. Each Qualified ECP Loan Party jointly and
severally (together with each other Qualified ECP Loan Party) hereby absolutely
unconditionally and irrevocably (a) guarantees the prompt payment and performance of all
Swap Obligations owing by each Non-Qualifying Party (it being understood and agreed
that this guarantee is a guaranty of payment and not of collection), and (b) undertakes to
provide such funds or other support as may be needed from time to time by any
Non-Qualifying Party to honor all of such Non-Qualifying Party's obligations under this
Agreement or any other Loan Document in respect of Swap Obligations (provided,
however, that each Qualified ECP Loan Party shall only be liable under this Section 7.1.10
for the maximum amount of such liability that can be hereby incurred without rendering its
obligations under this Section 7.1.10, or otherwise under this Agreement or any other Loan
Document, voidable under applicable law, including applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount). The obligations of
each Qualified ECP Loan Party under this Section 7.1.10 shall remain in full force and
effect until payment in full of the Obligations and termination of this Agreement and the
other Loan Documents. Each Qualified ECP Loan Party intends that this Section 7.1.10
constitute, and this Section 7.1.10 shall be deemed to constitute, a guarantee of the
obligations of, and a "keepwell, support, or other agreement" for the benefit of each other
Loan Party for all purposes of Section 1a(18(A)(v)(II) of the CEA.
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7.1.11 Immaterial Domestic Subsidiaries. The Borrower shall,
within thirty (30) days after any Authorized Officer of any Loan Party becomes aware that
the total assets of any Immaterial Domestic Subsidiary at the last day of the most recently
ended fiscal quarter of the Borrower equals or exceeds Ten Million and 00/100 Dollars
($10,000,000.00), as determined in accordance with GAAP, remove such Subsidiary from
Schedule 1.1(I) and join such Subsidiary to this Agreement as a Guarantor, in each case in
accordance with Section 5.2.3 [Removal of Immaterial Domestic Subsidiaries].7.1.12
Treasury Management. No later than December 31, 2016, the Loan Parties shall
open and maintain their primary operating, collection and other deposit accounts with one
or more Lenders, and if reasonably requested by the Administrative Agent, enter into
deposit account control agreement(s) with Administrative Agent and any such Lender in
order to perfect Administrative Agent’s Lien in the assets and proceeds thereof maintained
in any such account, in form and substance reasonably satisfactory to the Administrative
Agent.
7.1.12 Financial Advisor. No later than August 31, 2017 and at all
times thereafter (subject to the last sentence of this Section 7.1.12), the Borrower will
retain and engage a financial advisor acceptable to the Administrative Agent and the
Required Lenders (the "Financial Advisor"), pursuant to an engagement agreement in
form and substance acceptable to the Administrative Agent and the Required Lenders that
contains in its scope of employment, among other things, responsibility for (i) reviewing
and analyzing (including analysis and validation of key assumptions) the information
required by Sections 7.3.1 [Interim Financial Statements] and 7.3.2 [Annual Financial
Statements] of this Agreement and financial projections, and preparing and delivering to
the Borrower (for subsequent distribution by the Borrower to the Lenders) reports
containing analysis, conclusions and recommendations with respect to such reviews, (ii)
coordinating with and assisting Borrower’s management in developing each Budget, (iii)
advising the Borrower with respect to business plan assessment and analysis and potential
strategic or turnaround options, (iv) participating in phone calls or meetings with the
Borrower and the Lenders on at least a monthly basis and (v) no later than October 15,
2017, delivering to the Administrative Agent, for subsequent distribution to the Lenders, a
written analysis of Borrower’s business strategy, model, competitive position and long
term viability as it relates to projected profitability improvement and conclusions,
recommendations and timeline for achievement. The Borrower hereby covenants and
agrees that it is responsible for ensuring that the Financial Advisor performs its duties and
responsibilities in form and substance acceptable to the Administrative Agent and the
Required Lenders, including, without limitation, performance of the responsibilities
specifically delineated in the foregoing sentence. The Borrower hereby consents to the
Administrative Agent and/or any Lender directly contacting representatives of the
Financial Advisor concerning the Collateral and the Borrower's performance and
prospects, and the Borrower hereby agrees to make representatives of Financial Advisor
available in this regard to the Administrative Agent and/or any such Lender as requested
from time to time, during normal business hours. For the avoidance of doubt, all fees,
costs, expenses and other liabilities associated with the Borrower’s retention and
engagement of the Financial Advisor shall be obligations of the Borrower and shall not be
the responsibility or obligation of the Administrative Agent or any Lender in any way.
Upon the resignation of any Financial Advisor, the Borrower shall have forty-five (45)
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days from the date of such resignation to find a replacement Financial Advisor acceptable
to the Administrative Agent and the Required Lenders.
7.2 Negative Covenants.
7.2.1 Indebtedness. Each of the Loan Parties shall not, and shall
not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Indebtedness, except, without duplication:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as set forth on Schedule 7.2.1
(including any extensions or renewals thereof; provided there is no increase in the principal
amount thereof);
(iii) Indebtedness incurred with respect to Purchase Money
Security Interests and Capital Leases in aggregate principal amount not to exceed
Thirty-Five Million and 00/100 Dollars ($35,000,000.005,000,000.00) at any time
outstanding;
(iv) Indebtedness of a Loan Party to another Loan Party which
is subordinated pursuant to the Intercompany Subordination Agreement;
(v) Indebtedness of a Loan Party to an Excluded Subsidiary
which is subordinated pursuant to the Intercompany Subordination Agreement;
(vi) Indebtedness of an Excluded Subsidiary to a Loan Party so
long as such Indebtedness is incurred within the parameters of clause (ix) of Section 7.2.4
[Loans and Investments];
(vii) Indebtedness of an Excluded Subsidiary to another
Excluded Subsidiary;
(viii) Guaranties of Indebtedness permitted by Section 7.2.3
[Guaranties];
(ix) Any (i) Lender Provided Interest Rate Hedge, (ii) Lender
Provided Foreign Currency Hedge or (iii) Indebtedness under any Other Lender Provided
Financial Services Product; provided however, the Loan Parties shall enter into an Interest
Rate Hedge or Foreign Currency Hedge only for hedging (rather than speculative)
purposes;
(x) Indebtedness of one or more Loan Parties pursuant to an
unsecured line of credit for the purpose of providing financing to such Loan Parties in
connection with vendor purchasing relationships of such Loan Parties, not to exceed
ThirtyTwenty-Five Million and 00/100 Dollars ($35,000,000.0025,000,000.00) in the
aggregate for all such lines of credit;
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(xi) Indebtedness consisting of the financing of insurance
premiums in customary amounts consistent with the operations and business of the
Borrower and its Subsidiaries;(xii) Earn-out obligations in respect of Consideration in a
Permitted Acquisition until such obligations would be required to be reflected on a balance
sheet in accordance with GAAP; and
(xiiixii) Any unsecured Indebtedness not otherwise permitted
in items (i) through (xiixi) above which does not exceed TenOne Million and 00/100
Dollars ($10,000,000.001,000,000.00) in the aggregate at any one time outstanding.
7.2.2 Liens; Lien Covenants. Each of the Loan Parties shall not,
and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to
exist any Lien on any of its property or assets, tangible or intangible, now owned or
hereafter acquired, or agree or become liable to do so, except Permitted Liens.
7.2.3 Guaranties. Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, at any time, directly or indirectly, become or be liable in
respect of any Guaranty, except for, without duplication:
(i) Guaranties of Indebtedness of the Loan Parties permitted
hereunder,
(ii) contingent liabilities arising from the endorsement of
negotiable or other instruments for deposit or collection or similar transactions in the
ordinary course of business,
(iii) indemnities of the liabilities of its directors, officers and
employees in their capacities as such as permitted by Law;
(iv) contingent liabilities arising under commercial
transactions entered into in the ordinary course of business and otherwise permitted under
this Agreement;
(v) liabilities constituting usual and customary indemnities or
purchase price adjustments (other than Indebtedness) in connection with an acquisition or
disposition of stock or assets by any Loan Party or any Subsidiary of a Loan Party, and any
Guaranty of the obligations identified in this clause (v) by any Loan Party or Subsidiary of
a Loan Party;
(vi) Guaranties of the obligations of an Excluded Subsidiary
by another Excluded Subsidiary; and
(vii) other such obligations or liabilities in an aggregate
principal amount not to exceed, when taken together with all loans, advances and
investments permitted by clause (ix) of Section 7.2.4 [Loans and Investments],
ThirtyFifteen Million and 00/100 Dollars ($30,000,000.0015,000,000.00).
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7.2.4 Loans and Investments. Each of the Loan Parties shall not,
and shall not permit any of its Subsidiaries to, at any time (a) make or suffer to remain
outstanding any loan or advance to, (b) purchase, acquire or own any stock, bonds, notes or
securities of, or any partnership interest (whether general or limited) or limited liability
company interest in, or any other investment or interest in, or (c) make any capital
contribution to, any other Person, or agree, become or remain liable to do any of the
foregoing, except, without duplication:
(i) trade credit extended on usual and customary terms in the
ordinary course of business;
(ii) advances to employees to meet expenses incurred by such
employees in the ordinary course of business;
(iii) Permitted Investments;
(iv) transactions permitted by Section 7.2.6 [Liquidations,
Mergers, Consolidations, Acquisitions];
(v) loans, advances and investments by Loan Parties in other
Loan Parties;
(vi) loans, advances and investments by Excluded Subsidiaries
in other Excluded Subsidiaries;
(vii) loans, advances and investments by Excluded Subsidiaries
in Loan Parties, subject to the provisions of Section 7.2.1(v) [Indebtedness];
(viii) any loans, advances or investments existing on the Closing
Date and described on Schedule 7.2.4; and
(ix) loans, advances and investments not otherwise permitted
in items (i) through (viii) above in Excluded Subsidiaries and Joint Ventures in an amount,
measured at the time any such loan, advance or investment is made and when taken
together with all obligations permitted by clause (vii) of Section 7.2.3 [Guaranties], which
shall not exceed ThirtyFifteen Million and 00/100 Dollars ($30,000,000.0015,000,000.00)
in the aggregate at any one time outstanding.
7.2.5 Dividends and Related Distributions. Each of the Loan
Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to
become or remain liable to make or pay, any dividend or other distribution of any nature
(whether in cash, property, securities or otherwise) on account of or in respect of its shares
of Capital Stock, on account of the purchase, redemption, retirement or acquisition of its
shares of Capital Stock (or warrants, options or rights therefor), except (i) dividends or
other distributions payable to a Loan Party, (ii) so long as both immediately before and
immediately after giving effect thereto there exists no Event of Default or Potential
Default, regular quarterly dividends in an aggregate amount not to exceed Fifteen Million
and 00/100 Dollars ($15,000,000.00) in any fiscal year, (iii) the repurchase of Capital
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Stock occurring or deemed to occur upon the exercise or vesting of stock or other equity
awards under one of Borrower’s equity incentive plans and any repurchase or other
acquisition of Capital Stock made in lieu of withholding taxes in connection with any
exercise, vesting or exchange of stock or other equity awards under one of Borrower’s
equity incentive plans, (xxxx an aggregate amount not to exceed Eight Hundred Fifty
Thousand and 00/100 Dollars ($850,000.00) in any fiscal year and (iii) dividends or other
distributions payable from one Excluded Subsidiary to another Excluded Subsidiary and
(v) any other dividends or distributions so long as both immediately before and
immediately after giving effect thereto (a) there exists no Event of Default or Potential
Default, and (b) the pro forma Leverage Ratio (calculated if such dividend or distribution
has been made in the applicable measurement period) for the four (4) consecutive fiscal
quarters most recently ended is less than or equal to 3.00 to 1.0..
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions. Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, dissolve,
liquidate or wind-up its affairs, or become a party to any merger or consolidation, or
acquire by purchase, lease or otherwise all or substantially all of the assets or Capital Stock
of any other Person; provided that:
(i) upon prior written notice by the Borrower, any Loan Party
may consolidate or merge with or into another Loan Party (provided that the Borrower
survives any merger involving the Borrower) so long as (a) the Release Date has not
occurred, the Administrative Agent shall have been provided with any and all documents,
agreements, searches, filings or other items required by the Administrative Agent to
maintain the Administrative Agent's Prior Security Interest in the assets and Lien on the
property of such surviving entity and (b) such surviving entity shall have assumed all
obligations of such merged or consolidated Guarantor;
(ii) upon prior written notice by the Borrower, any Excluded
Subsidiary may consolidate or merge with or into a Loan Party so long as such Loan Party
survives such consolidation or merger, and so long as (a) if the Release Date has not
occurred, the Administrative Agent shall have been provided with any and all documents,
agreements, searches, filings or other items required by the Administrative Agent to
maintain the Administrative Agent's Prior Security Interest in the assets and Lien on the
property of such surviving entity and (b) such surviving entity shall have assumed all
obligations of such merged or consolidated Excluded Subsidiary;
(iii) upon prior written notice by the Borrower, any Guarantor
may dispose of all or any of its assets (upon voluntary liquidation, dissolution winding up
or otherwise) to the Borrower or any other Guarantor; provided that with respect to any
such disposition, the consideration for such disposition shall not exceed the fair market
value of such assets; and
(iv) any Excluded Subsidiary may (a) dispose of all or any of
its assets (upon voluntary liquidation, dissolution winding up or otherwise) to any other
Excluded Subsidiary or (b) consolidate or merge with or into any Excluded Subsidiary and
such merged or consolidated Excluded Subsidiary may be liquidated or dissolved if the
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Borrower determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and its Subsidiaries and is not materially adverse to the interests
of the Administrative Agent and the Lenders;
(v) any (A) Foreign Subsidiary or Disregarded Domestic
Subsidiary may acquire (by purchase or other acquisition) the ownership interests of
another Person that when acquired will become a Foreign Subsidiary or (B) Foreign
Subsidiary may acquire (by purchase or other acquisition) all or substantially all of the
assets of another Person (excluding any Loan Party) or of a business or division of another
Person (other than a Loan Party), provided that (a) in either case the business acquired, or
the business conducted by the Person whose ownership interests are being acquired, as
applicable, shall be substantially the same as, complementary, adjacent or substantially
related to one or more line or lines of business conducted by the Borrower and its
Subsidiaries and shall comply with Section 7.2.10 [Continuation of or Change in Business]
and (b) if such Foreign Subsidiary is acquiring the ownership interests in a Domestic
Person, if such Domestic Person is not designated as an Immaterial Domestic Subsidiary in
accordance with the terms of this Agreement, such Domestic Person shall join this
Agreement as a Guarantor pursuant to Section 10.15 [Joinder of Guarantors] and the
Administrative Agent shall have received all documents and other items required by
Section 10.15 [Joinder of Guarantors];
(vi) any Loan Party may acquire (by purchase or other
acquisition) (x) all of the ownership interests of another Person, (y) all or substantially all
of the assets of another Person or (z) all or a substantial portion of one or more lines of
business or divisions of another Person (each, a "Permitted Acquisition"); provided that
each of the following requirements is met:
(A) if such Loan Party is acquiring the ownership
interests in a Domestic Person, if such Domestic Person is not designated as an Immaterial
Domestic Subsidiary in accordance with the terms of this Agreement, such Domestic
Person shall join this Agreement as a Guarantor pursuant to Section 10.15 [Joinder of
Guarantors] and the Administrative Agent shall have received all documents and other
items required by Section 10.15 [Joinder of Guarantors];
(B) such Permitted Acquisition is not a hostile or
contested acquisition;
(C) each applicable Official Body shall have approved
such Permitted Acquisition and the Loan Parties shall have delivered to the Administrative
Agent and the Lenders written evidence of the approval of such Official Body or such
Permitted Acquisition;
(D) the business or assets acquired, or the business
conducted by the Person whose ownership interests are being acquired, as applicable, shall
be substantially the same as or complementary or substantially related to one or more line
or lines of business conducted by the Loan Parties and shall comply with Section 7.2.10
[Continuation of or Change in Business];
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(E) except if the applicable Permitted Acquisition is for
Consideration less than Ten Million and 00/100 Dollars ($10,000,000.00), the Borrower
shall deliver to the Agent a compliance certificate in the form of Exhibit 7.2.6 (an
"Acquisition Compliance Certificate") at least five (5) days prior (or such shorter
timeframe as may be agreed to by the Administrative Agent in its sole discretion) to the
closing date such Permitted Acquisition, which shall demonstrate that the Loan Parties
shall be in pro forma compliance with the covenant contained in Sections 7.2.13
[Maximum Leverage Ratio] after giving effect to such Permitted Acquisition (including in
such computation Indebtedness or other liabilities assumed or incurred in connection with
such Permitted Acquisition); provided that in connection with such compliance, the Loan
Parties shall demonstrate that the Leverage Ratio, on the date of such Permitted
Acquisition and after giving effect thereto, does not exceed the Reduced Leverage
Threshold;
(F) except if the applicable Permitted Acquisition is for
Consideration less than Ten Million and 00/100 Dollars ($10,000,000.00), the Loan Parties
shall deliver to the Administrative Agent at least five (5) days before (or such shorter
timeframe as may be agreed to by the Administrative Agent in its sole discretion) such
Permitted Acquisition copies of (x) any agreements entered into or proposed to be entered
into by such Loan Parties in connection with such Permitted Acquisition, (y) such other
information about such Person or its assets as the Administrative Agent or any Lender may
reasonably require; and(G) no Event of Default or Potential Default shall exist
immediately prior to or after giving effect to such Permitted Acquisition.
7.2.7 Dispositions of Assets or Subsidiaries. Each of the Loan
Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease,
abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its
properties or assets, tangible or intangible (including sale, assignment, discount or other
disposition of accounts, contract rights, chattel paper, equipment or general intangibles
with or without recourse or of Capital Stock of a Subsidiary of such Loan Party), except:
(i) transactions involving (a) the sale of inventory in the
ordinary course of business and (b) the transfer, license or other conveyance of intellectual
property and other intangible assets in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course
of business which are obsolete or no longer necessary or required in the conduct of such
Loan Party's or such Subsidiary's business;(iii) any sale, transfer or lease of assets
(including, without limitation, Capital Stock) by any Loan Party or any wholly owned
Subsidiary of such Loan Party to another Loan Party;
(iviii) any sale, transfer or lease of assets in the ordinary course
of business which are replaced by substitute assets acquired or leased within the parameters
of this Agreement; provided that if the Release Date has not occurred, such substitute
assets are subject to the Lenders' Prior Security Interest;
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(iv) any sale, transfer or lease of assets in the ordinary course
of business which are obsolete or no longer necessary or required in the conduct of such
Loan Party's or such Subsidiary's business;
(v) the sale for fair market value of the Borrower’s owned real
property located at 0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxx;
(vi) any disposal of any interest in any Joint Venture for fair
market value; and
(vivii) any sale, transfer or lease of assets (including the Capital
Stock of a Loan Party or Excluded Subsidiary) made after the First Amendment Effective
Date for fair market value if the Considerationaggregate cash and other consideration
received by the Borrower and its Subsidiaries for all such sales, transfers and leases
consummated during the term of this Agreement is less than Twenty-FiveTwo Million
Five Hundred Thousand and 00/100 Dollars ($25,000,0002,500,000) in the aggregate, and
only so long as no Event of Default or Potential Default shall exist immediately prior to or
after giving effect to such disposition; and
(viiviii) any sale, transfer or lease of assets, other than those
specifically excepted pursuant to clauses (i) through (vivii) above, which is approved by
the Required Lenders.
7.2.8 Affiliate Transactions. Each of the Loan Parties shall not,
and shall not permit any of its Subsidiaries to, enter into or carry out any transaction with
any Affiliate of any Loan Party (including purchasing property or services from or selling
property or services to any Affiliate of any Loan Party or other Person) unless such
transaction is not otherwise prohibited by this Agreement, is entered into in the ordinary
course of business upon fair and reasonable arm's-length terms and conditions and which is
in accordance with all applicable Law. The following items will not be deemed to be
transactions with Affiliates of a Loan Party and, therefore, will not be subject to the
provisions of this Section 7.2.8: (a) any employment agreement, employee benefit plan,
officer, director or employee indemnification agreement or any similar arrangement,
including the issuance of Capital Stock in connection therewith, entered into by any Loan
Party or any of its Subsidiaries in the ordinary course of business and payments pursuant
thereto, (b) any transaction between a Loan Party and another Loan Party and (c) any
transaction between an Excluded Subsidiary and another Excluded Subsidiary.
7.2.9 Subsidiaries and Joint Ventures. Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to own or create directly or indirectly
any Subsidiaries other than:
(i) any Domestic Subsidiary which has joined thisis a party to
the Agreement as a Guarantor on the ClosingFirst Amendment Effective Date;
(ii) any Immaterial Domestic Subsidiary designated as such
on Schedule 1.1(I) on the Closing Date;(iii) any Domestic Subsidiary either (a) created,
acquired or otherwise formed after the ClosingFirst Amendment Effective Date in
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compliance with this Agreement (and not designated as an Immaterial Domestic
Subsidiary in accordance with clause (iv) below) or (b) required to be removed from being
listed as an Immaterial Domestic Subsidiary pursuant to the terms of this
Agreementincluding any Domestic Person no longer classified as a Disregarded Domestic
Subsidiary), so long as such Domestic Subsidiary joins this Agreement as a Guarantor
pursuant to Section 10.15 [Joinder of Guarantors];(iv) any Domestic Subsidiary
created, acquired or otherwise formed after the Closing Date that is designated as an
Immaterial Domestic Subsidiary on Schedule 1.1(I) pursuant to an update to such Schedule
provided by the Borrower to the Administrative Agent within thirty (30) days after the
creation, acquisition or formation of such Domestic Subsidiary, or such later date as
consented to by the Administrative Agent in writing; and
(viii) any Foreign Subsidiary or Disregarded Domestic
Subsidiary (a) existing as of the Closing Date, or (b) formed by the Borrower or a
Subsidiary of the Borrower after the Closing Date in compliance with Section 7.2.4 [Loans
and Investments] or (c) acquired after the Closing Date in compliance with this Agreement.
Except as permitted pursuant to Section 7.2.4 [Loans and Investments], each of the Loan
Parties shall not become or agree to become a party to a Joint Venture.
7.2.10 Continuation of or Change in Business. Each of the Loan
Parties shall not, and shall not permit any of its Subsidiaries to, engage in any business
other than providing technology solutions to help its customers design, build, manage and
secure their information technology networks, and businesses substantially related,
complementary, adjacent incidental or ancillary thereto.
7.2.11 Fiscal Year. The Borrower shall not, and shall not permit
any other Loan Party to, change its fiscal year from the twelve month period beginning
April 1 and ending March 31.
7.2.12 Changes in Organizational Documents. Each of the Loan
Parties shall not, and shall not permit any of its Subsidiaries to, amend in any respect its
certificate of incorporation (including any provisions or resolutions relating to Capital
Stock), by-laws, certificate of limited partnership, partnership agreement, certificate of
formation, limited liability company agreement or other organizational documents in any
manner that would be materially adverse to the Lenders, without providing at least five (5)
calendar days' prior written notice to the Administrative Agent and the Lenders and
obtaining the prior written consent of the Required Lenders.
7.2.13 Maximum Leverage Ratio. The Loan Parties shall not
permit the Leverage Ratio to exceed (i) 3.754.00 to 1.00, calculated as of June 30, 2016 and
the end of each fiscal quarter thereafter through and including the fiscal quarter ending
June 30, 2017, (ii) 3.50 to 1.00 (or upon and after the Release Date, if applicable, 3.25 to
1.00),September 30, 2018, (ii) 3.75 to 1.00, calculated as of December 31, 2018, (iii) 3.50
to 1.00, calculated as of March 31, 2019, (iv) 3.25 to 1.00, calculated as of June 30, 2019
and (v) 3.00 to 1.00, calculated as of September 30, 2017 and the end of each fiscal quarter
thereafter through and including March 31, 2018 and (iii) 3.25 to 1.00 (or upon and after
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the Release Date, if applicable, 3.00 to 1.00), calculated as of June 30, 20182019 and the
end of each fiscal quarter thereafter.
7.2.14 Minimum InterestFixed Charge Coverage Ratio. The Loan
Parties shall not permit the InterestFixed Charge Coverage Ratio, to be less than (i) 1.00 to
1.00, calculated as of June 30, 2016September 30, 2018 and December 31, 2018 and (ii)
1.10 to 1.00, calculated as of March 31, 2019 and the end of each fiscal quarter thereafter,
to be less than 3.50 to 1.00..
7.2.15 Minimum Consolidated EBITDA. The Loan Parties shall
not permit Consolidated EBITDA, in each case for the four (4) consecutive fiscal quarters
then ending, to be less than (i) Seventeen Million and 00/100 Dollars ($17,000,000.00),
calculated as of the fiscal quarter ending September 30, 2017, (ii) Fourteen Million and
00/100 Dollars ($14,000,000.00), calculated as of the fiscal quarter ending December 31,
2017, (iii) Fourteen Million Five Hundred Thousand and 00/100 Dollars ($14,500,000.00),
calculated as of the fiscal quarter ending March 31, 2018 and (iv) Twenty Million and
00/100 Dollars ($20,000,000.00), calculated as of the fiscal quarter ending June 30, 2018.
7.2.16 Maximum Capital Expenditures. Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, contract for, purchase or make any
expenditure or commitments for Capital Expenditures in an aggregate amount for all Loan
Parties and their Subsidiaries in excess of (i) Three Million and 00/100 Dollars
($3,000,000.00) in the fiscal quarter of the Loan Parties ending September 30, 2017, (ii)
Two Million One Hundred Thousand and 00/100 Dollars ($2,100,000.00) in the fiscal
quarter of the Loan Parties ending December 31, 2017, (iii) One Million Three Hundred
Thousand and 00/100 Dollars ($1,300,000.00) in the fiscal quarter of the Loan Parties
ending March 31, 2018 and (iv) Four Million and 00/100 Dollars ($4,000,000.00) in the
fiscal quarter of the Loan Parties ending June 30, 2018; provided that any of the foregoing
Dollar amounts set forth in this Section 7.2.16 may be increased by the amount of any SAP
Implementation Related Expenses constituting Capital Expenditures during such period, in
an aggregate amount for all such increases not to exceed the difference between (i) the
amount of all SAP Implementation Related Expenses constituting Capital Expenditures
minus (ii) Four Million and 00/100 Dollars ($4,000,000.00). Notwithstanding the
foregoing, fifty percent (50%) of any portion of any amount specified above, if not
expended in the fiscal quarter for which it is permitted above, may be carried over for
expenditure in the immediately succeeding fiscal quarter and will be deemed to be used for
the first capital expenditures made in the applicable subsequent fiscal quarter.
7.2.17 Limitation on Negative Pledges. Each of the Loan Parties
shall not, and shall not permit any Subsidiary, to enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of such Loan Party or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of the Collateral
securing the Obligations, other than (a) this Agreement and the other Loan Documents (b)
with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in
connection with a disposition of assets permitted under this Agreement of all or
substantially all of the equity interests or assets of such Subsidiary, (c) any agreements
governing any purchase money Liens or capital lease obligations otherwise permitted
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hereby (in which case, any prohibition or limitation shall only be effective against the
assets financed thereby and the proceeds thereof), (d) restrictions imposed by any
agreement relating to secured Indebtedness permitted pursuant to 7.2.1 [Indebtedness] to
the extent that such restrictions apply only to the property or assets securing such
Indebtedness and the proceeds thereof; (e) customary provisions restricting assignment or
sublicensing of any assets under a licensing agreement (in which a Loan Party or its
Subsidiaries are the licensee) with respect to a contract entered into by a Loan Party or its
Subsidiaries in the ordinary course of business (f) customary provisions restricting
assignment of any agreement entered into in the ordinary course of business, (g) customary
provisions restricting subletting, sublicensing or assignment of any intellectual property
license or any lease governing any leasehold interests of a Loan Party and its Subsidiaries,
(h) any agreement acquired pursuant to a Permitted Acquisition, and any renewal or
extension thereof and (i and (h) with respect to any Person becoming a Subsidiary in
accordance with the terms of this Agreement after the Closing Date, any agreement in
effect at the time such Person becomes a Subsidiary so long as such agreement was not
entered into in contemplation of such Person becoming a Subsidiary and any such
prohibition only applies to such Subsidiary.
7.3 Reporting Requirements. The Loan Parties will furnish or cause to be
furnished to the Administrative Agent and each of the Lenders:
7.3.1 QuarterlyInterim Financial Statements.
7.3.1.1 Monthly Financial Statements. As soon as
available and in any event not later than the earlier to occur of (x) the date by which the
Borrower is required to file its quarterly report on form 10-Q with the SEC after the close
of each of the first (1st) three (3) fiscal quarters of each fiscal year of the Borrower and (y)
the forty-fifth (45thirtieth (30th) day after the close of any such fiscal quarter,fiscal month,
commencing with the fiscal month ended July 30, 2017, financial statements of the
Borrower and its Subsidiaries, consisting of a consolidated balance sheet as of the end of
such fiscal quartermonth and related consolidated statements of income, stockholders'
equity and cash flows for the fiscal quartermonth then ended and the fiscal year through
that date, all in reasonable detail and certified (subject to normal year-end audit
adjustments) by the Chief Executive Officer, President or Chief Financial Officer of the
Borrower as having been prepared in accordance with GAAP, consistently applied, and, to
the extent applicable, setting forth in comparative form the respective financial statements
for the corresponding date and period in the previous fiscal year.
7.3.1.2 Quarterly Financial Statements. As soon as
available and in any event not later than the earlier to occur of (x) the date by which the
Borrower is required to file its quarterly report on form 10-Q with the SEC after the close
of each of the first (1st) three (3) fiscal quarters of each fiscal year of the Borrower
(commencing with the fiscal quarter ended July 1, 2017) and (y) the forty-fifth (45th) day
after the close of any such fiscal quarter, financial statements of the Borrower and its
Subsidiaries, consisting of a consolidated balance sheet as of the end of such fiscal quarter
and related consolidated statements of income, stockholders' equity and cash flows for the
fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and
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certified (subject to normal year-end audit adjustments) by the Chief Executive Officer,
President or Chief Financial Officer of the Borrower as having been prepared in
accordance with GAAP, consistently applied, and setting forth in comparative form the
respective financial statements for the corresponding date and period in the previous fiscal
year.
7.3.2 Annual Financial Statements. As soon as available and in
any event not later than the earlier to occur of (x) the date by which the Borrower is
required to file its annual report on Form 10-K with the SEC after the close of each fiscal
year of the Borrower (commencing with the fiscal year ending March 31, 2018) and (y) the
ninetieth (90th) day after the close of any such fiscal year of the Borrower, financial
statements of the Borrower and its Subsidiaries consisting of an audited consolidated
balance sheet as of the end of such fiscal year, and related consolidated statements of
income, stockholders' equity and cash flows for the fiscal year then ended, all in reasonable
detail and setting forth in comparative form the financial statements as of the end of and for
the preceding fiscal year, and certified by independent certified public accountants of
nationally recognized standing satisfactory to the Administrative Agent. The certificate or
report of accountants shall be free of qualifications (other than any consistency
qualification that may result from a change in the method used to prepare the financial
statements as to which such accountants concur) and shall not indicate the occurrence or
existence of any event, condition or contingency which would materially impair the
prospect of payment or performance of any covenant, agreement or duty of any Loan Party
under any of the Loan Documents
7.3.3 Consolidating Segment Reports. As soon as available and
in any event within five (5) Business Days after the end of the respective time period
provided for in Sections 7.3.17.3.1.2 [Quarterly Financial Statements] and 7.3.2 [Annual
Financial Statements], unaudited consolidating statements of income of the Borrower and
its Subsidiaries for each reporting segment consistent with the Borrower’s SEC filings for
such fiscal quarter or fiscal year, as the case may be, and unaudited consolidating balance
sheets of the Borrower and its Subsidiaries for each reporting segment consistent with the
Borrower’s SEC filings as of the close of such fiscal quarter or fiscal year, as the case may
be, all in reasonable detail and certified by the Chief Executive Officer, President or Chief
Financial Officer of the Borrower as presenting fairly the financial position of such
segments of the Borrower and its Subsidiaries as of the end of such fiscal quarter or fiscal
year, as the case may be, and the results of their operations for such fiscal quarter or fiscal
year, as the case may be, in conformity with GAAP (exclusive of principals of
consolidation), subject (in the case of quarterly reports) to normal and recurring year-end
audit adjustments.
7.3.4 Certificate of the Borrower. Concurrently with the financial
statements of the Borrower furnished to the Administrative Agent and to the Lenders
pursuant to Sections 7.3.17.3.1.2 [Quarterly Financial Statements] and 7.3.2 [Annual
Financial Statements], commencing with the fiscal quarter ending September 30, 2017, a
certificate (each a "Compliance Certificate") of the Borrower signed by the Chief
Executive Officer, President or Chief Financial Officer of the Borrower, in the form of
Exhibit 7.3.4.
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7.3.5 Other Financial Reports.
(i) Annual Operating Plans. The annual operating plans and
any forecasts or projections of the Borrower, to be supplied not later than sixty (60) days
after commencement of the fiscal year to which any of the foregoing may be applicable,
(ii) Weekly Budget. Weekly, no later than Tuesday of each
week beginning with the week of August 14, 2017, (a) an updated Budget for the
succeeding thirteen-week period, which, upon the Administrative Agent's notice of
acceptance, in the Administrative Agent's sole discretion, will be deemed to constitute the
new Budget, and (b) a reconciliation of actual performance of the Loan Parties and their
Subsidiaries for the immediately prior week versus their projected performance in the
Budget for such week, provided that management and the Borrower's Financial Advisor
will concurrently provide written explanation for any negative variance in the projected
ending cash balance for such week exceeding fifteen percent (15%).
7.3.6 Notices.
7.3.5.17.3.6.1 Default. Promptly after any Authorized Officer of
any Loan Party has learned of the occurrence of an Event of Default or Potential Default, a
certificate signed by an Authorized Officer setting forth the details of such Event of
Default or Potential Default and the action which such Loan Party proposes to take with
respect thereto.
7.3.5.27.3.6.2 Litigation. Promptly after any Authorized Officer
has become aware of the commencement thereof, notice of all actions, suits, proceedings
or investigations before or by any Official Body or any other Person against any Loan Party
or Subsidiary of any Loan Party which relate to the Collateral, involve a claim or series of
claims in excess of Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00) or which if adversely determined would constitute a Material Adverse
Change.
7.3.5.37.3.6.3 Erroneous Financial Information. Promptly in the
event that the Borrower or its accountants conclude or advise that any previously issued
financial statement, audit report or interim review should no longer be relied upon or that
disclosure should be made or action should be taken to prevent future reliance, notice in
writing setting forth the details thereof and the action which the Borrower proposes to take
with respect thereto.
7.3.5.47.3.6.4 ERISA Event. Promptly upon the occurrence of
any ERISA Event, notice in writing setting forth the details thereof and the action which
the Borrower proposes to take with respect thereto.
7.3.5.57.3.6.5 Other Reports. Promptly upon their becoming
available to the Borrower:
(i) Annual Operating Plans. The annual operating plans and
any forecasts or projections of the Borrower, to be supplied not later than sixty (60) days
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after commencement of the fiscal year to which any of the foregoing may be applicable,(ii)
Management Letters. Any reports including management
letters submitted to the Borrower by independent accountants in connection with any
annual, interim or special audit,
(iiiii) SEC Reports; Shareholder Communications. Reports,
including Forms 10-K, 10-Q and 8-K, registration statements and prospectuses and other
shareholder communications, filed by the Borrower with the SEC, and
(iviii) Other Information. Such other reports and information as
any of the Lenders may from time to time reasonably request.
Documents required to be delivered pursuant Section 7.3.1 [QuarterlyInterim Financial
Statements], Section 7.3.2 [Annual Financial Statements], Section 7.3.5 [Other Financial
Reports] and Section 7.3.5.57.3.6.5 [Other Reports] may be delivered electronically and, if
so delivered (to the extent that the Borrower is required to file Annual Reports or Quarterly
Reports with the SEC), shall be deemed to have been delivered on the date on which such
documents are filed for public availability on the XXXXX website; provided that the
Borrower shall (i) notify (which may be by facsimile or electronic mail) the Administrative
Agent of the filing of any such documents, and (2) provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything to the contrary contained herein, in every instance the Borrower shall be required
to provide paper copies of the compliance certificate required by Section 7.3.4 [Certificate
of the Borrower] to the Administrative Agent.
8. DEFAULT
8.1 Events of Default. An Event of Default shall mean the occurrence or
existence of any one or more of the following events or conditions (whatever the reason
therefor and whether voluntary, involuntary or effected by operation of Law):
8.1.1 Payments Under Loan Documents. The Borrower shall fail
to pay (i) any principal of any Loan (including scheduled installments, mandatory
prepayments or the payment due at maturity) or Letter of Credit Borrowing on the date
which such principal becomes due in accordance with the terms hereof, or (ii) any interest
on any Loan, Letter of Credit Borrowing or other Obligation, or any fee, indemnity,
expense or other amount owing hereunder or under the other Loan Documents (excluding
amounts expressly covered by sub-clause (i) of this Section 8.1.1) on the date such interest,
fee, indemnity, expense or other amount becomes due in accordance with the terms hereof
and such failure continues for three (3) Business Days or (iii) any fee, indemnity, expense,
or other amount owing hereunder or under the other Loan Documents (excluding amounts
expressly covered by sub-clauses (i) and (ii) of this Section 8.1.1) on the date on which
such fee, indemnity, expense or other amount becomes due in accordance with the terms
hereof or thereof and such failure continues for ten (10) Business Days;
8.1.2 Breach of Warranty. Any representation or warranty made
at any time by any of the Loan Parties herein or by any of the Loan Parties in any other
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Loan Document, or in any certificate, other instrument or statement furnished pursuant to
the provisions hereof or thereof, shall prove to have been false or misleading in any
material respect as of the time it was made or furnished;
8.1.3 Anti-Terrorism Laws. Any representation or warranty
contained in Section 5.1.16 [Anti-Terrorism Laws] is or becomes false or misleading at any
time;
8.1.4 Breach of Negative Covenants, Visitation Rights or,
Anti-Terrorism Laws or Financial Advisor Requirement. Any of the Loan Parties
shall default in the observance or performance of any covenant contained in Section 7.1.5
[Visitation Rights], Section 7.1.9 [Anti-Terrorism Laws; International Trade Law
Compliance], Section 7.1.12 [Financial Advisor] or Section 7.2 [Negative Covenants];
8.1.5 Breach of Other Covenants. Any of the Loan Parties shall
default in the observance or performance of any other covenant, condition or provision
hereof or of any other Loan Document and such default shall continue unremedied for a
period of thirty (30) days after any Authorized Officer of any Loan Party becomes aware of
the occurrence thereof;
8.1.6 Defaults in Other Agreements or Indebtedness. A default or
event of default shall occur at any time under the terms of any other agreement involving
borrowed money or the extension of credit or any other Indebtedness under which any
Loan Party or Subsidiary of any Loan Party may be obligated as a borrower or guarantor in
excess of FiveTwo Million and 00/100 Dollars ($5,000,000.002,000,000.00) in the
aggregate, and such breach, default or event of default consists of the failure to pay
(beyond any period of grace permitted with respect thereto, whether waived or not) any
Indebtedness when due (whether at stated maturity, by acceleration or otherwise) or if such
breach or default permits or causes the acceleration of any Indebtedness (whether or not
such right shall have been waived) or the termination of any commitment to lend;
8.1.7 Final Judgments or Orders. Any final judgments or orders
for the payment of money in excess of FiveTwo Million and 00/100 Dollars
($5,000,000.002,000,000.00) in the aggregate in excess of any applicable valid and
binding third party insurance coverage not in dispute shall be entered against any Loan
Party by a court having jurisdiction in the premises, which judgment is not discharged,
vacated, bonded or stayed pending appeal within a period of thirty (30) days from the date
of entry;
8.1.8 Loan Document Unenforceable. Any of the Loan
Documents shall cease to be legal, valid and binding agreements enforceable against the
party executing the same or such party's successors and assigns (as permitted under the
Loan Documents) in accordance with the respective terms thereof or shall in any way be
terminated (except in accordance with its terms) or become or be declared ineffective or
inoperative or shall in any way be challenged or contested or cease to give or provide the
respective Liens, security interests, rights, titles, interests, remedies, powers or privileges
intended to be created thereby;
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8.1.9 Uninsured Losses; Proceedings Against Assets. There shall
occur any material uninsured damage to or loss, theft or destruction of any of the Collateral
in excess of FiveTwo Million and 00/100 Dollars ($5,000,000.002,000,000.00) or the
Collateral or any other of the Loan Parties' or any of their Subsidiaries' assets are attached,
seized, levied upon or subjected to a writ or distress warrant; or such come within the
possession of any receiver, trustee, custodian or assignee for the benefit of creditors and the
same is not cured within sixty (60) days thereafter;
8.1.10 Events Relating to Pension Plans and Multiemployer Plans.
An ERISA Event occurs with respect to a Pension Plan which constitutes a Material
Adverse Change, or Borrower or any member of the ERISA Group fails to pay when due,
after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan, where
the aggregate amount of unamortized withdrawal liability has resulted in a Material
Adverse Change;
8.1.11 Change of Control. A Change of Control shall occur.
8.1.12 Relief Proceedings. A Relief Proceeding shall have been
instituted against any Loan Party or Subsidiary of a Loan Party and such Relief Proceeding
shall remain undismissed or unstayed and in effect for a period of thirty (30) consecutive
days or such court shall enter a decree or order granting any of the relief sought in such
Relief Proceeding, (ii) any Loan Party institutes a Relief Proceeding, or (iii) any Loan
Party admits in writing its inability to pay its debts as they mature.
8.2 Consequences of Event of Default.
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or
Reorganization Proceedings. If an Event of Default specified under Sections 8.1.1
[Payments Under Loan Documents] through 8.1.11 [Change of Control] shall occur and be
continuing, the Lenders and the Administrative Agent shall be under no further obligation
to make Loans and the Issuing Lender shall be under no obligation to issue Letters of
Credit and the Administrative Agent may, and upon the request of the Required Lenders,
shall (i) by written notice to the Borrower, declare the unpaid principal amount of the Notes
then outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to the Lenders hereunder and thereunder to be forthwith due
and payable, and the same shall thereupon become and be immediately due and payable to
the Administrative Agent for the benefit of each Lender without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly waived, and (ii)
require the Borrower to, and the Borrower shall thereupon, deposit in a
non-interest-bearing account with the Administrative Agent, as cash collateral for its
Obligations under the Loan Documents, an amount equal to the maximum amount
currently or at any time thereafter available to be drawn on all outstanding Letters of
Credit, and the Borrower hereby pledges to the Administrative Agent and the Lenders, and
grants to the Administrative Agent and the Lenders a security interest in, all such cash as
security for such Obligations (once the applicable Event of Default has been waived in
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accordance with the terms of this Agreement, the Administrative Agent shall promptly
return such cash collateral to the Borrower); and
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings. If
an Event of Default specified under Section 8.1.12 [Relief Proceedings] shall occur, the
Lenders shall be under no further obligations to make Loans hereunder and the Issuing
Lender shall be under no obligation to issue Letters of Credit and the unpaid principal
amount of the Loans then outstanding and all interest accrued thereon, any unpaid fees and
all other Indebtedness of the Borrower to the Lenders hereunder and thereunder shall be
immediately due and payable, without presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived; and
8.2.3 Set-off. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Lender, and each of their respective Affiliates and any
participant of such Lender or Affiliate which has agreed in writing to be bound by the
provisions of Section 4.3 [Sharing of Payments by Lenders] is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the Issuing Lender or any such Affiliate or participant to or for
the credit or the account of any Loan Party against any and all of the Obligations of such
Loan Party now or hereafter existing under this Agreement or any other Loan Document to
such Lender, the Issuing Lender, Affiliate or participant, irrespective of whether or not
such Lender, Issuing Lender, Affiliate or participant shall have made any demand under
this Agreement or any other Loan Document and although such Obligations of the
Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or
office of such Lender or the Issuing Lender different from the branch or office holding such
deposit or obligated on such Indebtedness. The rights of each Lender, the Issuing Lender
and their respective Affiliates and participants under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, the Issuing Lender
or their respective Affiliates and participants may have. Each Lender and the Issuing
Lender agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application; provided that the failure to give such notice shall not affect the
validity of such setoff and application;
8.2.4 Enforcement of Rights and Remedies. Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the authority to
enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings
at law in connection with such enforcement shall be instituted and maintained exclusively
by, the Administrative Agent in accordance with this Section 8.2 for the benefit of all the
Lenders and the Issuing Lender; provided that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure
to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other
Loan Documents, (b) the Issuing Lender or the Swing Loan Lender from exercising the
rights and remedies that inure to its benefit (solely in its capacity as the Issuing Lender or
Swing Loan Lender, as the case may be) hereunder and under the other Loan Documents,
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(c) any Lender from exercising setoff rights in accordance with Section 8.2.3 [Set-Off]
(subject to the terms of Section 4.3 [Sharing of Payments by Lenders]), or (d) any Lender
from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Insolvency Proceeding; and
provided, further, that if at any time there is no Person acting as Administrative Agent
hereunder and under the other Loan Documents, then (i) the Required Lenders shall have
the rights otherwise ascribed to the Administrative Agent pursuant to this Section 8.2.4,
and (ii) in addition to the matters specified in clauses (b), (c) and (d) of the preceding
proviso and subject to Section 4.3 [Sharing of Payments by Lenders]), any Lender may,
with the consent of the Required Lenders, enforce any rights and remedies available to it
and as authorized by the Required Lenders.
8.2.5 Application of Proceeds. From and after the date on which
the Administrative Agent has taken any action pursuant to this Section 8.2 and until
Payment in Full, any and all proceeds received by the Administrative Agent from any sale
or other disposition of the Collateral, or any part thereof, or the exercise of any other
remedy by the Administrative Agent, shall be applied as follows:
(i) First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts, including attorney fees,
payable to the Administrative Agent in its capacity as such, the Issuing Lender in its
capacity as such and the Swing Loan Lender in its capacity as such, ratably among the
Administrative Agent, the Issuing Lender and Swing Loan Lender in proportion to the
respective amounts described in this clause First payable to them;
(ii) Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders under the Loan Documents, including attorney fees, ratably among the
Lenders in proportion to the respective amounts described in this clause Second payable to
them;
(iii) Third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans and Reimbursement Obligations,
ratably among the Lenders in proportion to the respective amounts described in this clause
Third payable to them;
(iv) Fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans, Reimbursement Obligations and payment
obligations then owing under Lender Provided Interest Rate Xxxxxx, Lender Provided
Foreign Currency Xxxxxx, and Other Lender Provided Financial Service Products, ratably
among the Lenders, the Issuing Lender, and the Lenders or Affiliates of Lenders which
provide Lender Provided Interest Rate Xxxxxx, Lender Provided Foreign Currency
Xxxxxx, and Other Lender Provided Financial Service Products, and to the Administrative
Agent for the account of the Issuing Lender, to cash collateralize any undrawn amounts
under outstanding Letters of Credit (to the extent not otherwise cash collateralized
pursuant to this Agreement), in proportion to the respective amounts described in this
clause Fourth held by them; and
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(v) Fifth, to the Administrative Agent for the account of the
Issuing Lender, to cash collateralize any undrawn amounts under outstanding Letters of
Credit; and(vi) Last, the balance, if any, to the Loan Parties or as required
by Law.
Amounts used to cash collateralize any undrawn amount of Letters of Credit pursuant to
clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as
they occur. If any amount remains on deposit as cash collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied to the
other Obligations, if any, in the order specified above.
Notwithstanding anything to the contrary in this Section 8.2.5, no Swap Obligations of any
Non-Qualifying Party shall be paid with amounts received from such Non-Qualifying
Party under its Guaranty Agreement (including sums received as a result of the exercise of
remedies with respect to such Guaranty Agreement) or from the proceeds of such
Non-Qualifying Party's Collateral if such Swap Obligations would constitute Excluded
Hedge Liabilities; provided, however, that to the extent possible appropriate adjustments
shall be made with respect to payments and/or the proceeds of Collateral from other Loan
Parties that are Eligible Contract Participants with respect to such Swap Obligations to
preserve the allocation to Obligations otherwise set forth above in this Section 8.2.5.
9. THE ADMINISTRATIVE AGENT
9.1 Appointment and Authority. Each of the Lenders and the Issuing Lender
hereby irrevocably appoints PNC to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this Section 9 are solely for
the benefit of the Administrative Agent, the Lenders and the Issuing Lender, and neither
the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
9.2 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative Agent and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.3 Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Administrative Agent:
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(a) shall not be subject to any fiduciary or other
implied duties, regardless of whether a Potential Default or Event of Default has occurred
and is continuing;
(b) shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents); provided that the Administrative Agent shall not be required to
take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable
Law; and
(c) shall not, except as expressly set forth herein and
in the other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of
its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as provided in
Sections 10.1 [Modifications, Amendments or Waivers] and 8.2 [Consequences of Event
of Default]) or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Potential Default or
Event of Default unless and until notice describing such Potential Default or Event of
Default is given to the Administrative Agent by the Borrower, a Lender or the Issuing
Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any
Potential Default or Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Section 6
[Conditions of Lending and Issuance of Letters of Credit] or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution) believed by it
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to be genuine and to have been signed, sent or otherwise authenticated by the proper
Person. The Administrative Agent also may rely upon any statement made to it orally or
by telephone and believed by it to have been made by the proper Person, and shall not incur
any liability for relying thereon. In determining compliance with any condition hereunder
to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or the Issuing Lender, the Administrative Agent
may presume that such condition is satisfactory to such Lender or the Issuing Lender
unless the Administrative Agent shall have received notice to the contrary from such
Lender or the Issuing Lender prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
9.5 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the Administrative
Agent. The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Section 9 shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.
9.6 Resignation of Administrative Agent. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the Issuing Lender and the Borrower.
Upon receipt of any such notice of resignation, the Required Lenders shall have the right,
with approval from the Borrower (so long as no Event of Default has occurred and is
continuing), to appoint a successor, such approval not to be unreasonably withheld or
delayed. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the Issuing Lender, appoint a successor
Administrative Agent; provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (i) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents (except that in the case of any collateral security held
by the Administrative Agent on behalf of the Lenders or the Issuing Lender under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is appointed) and
(ii) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and the
Issuing Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section 9.6. Upon the acceptance of a
successor's appointment as Administrative Agent hereunder, such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring (or
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retired) Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor. After the
retiring Administrative Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Section 9 and Section 10.3 [Expenses; Indemnity;
Damage Waiver] shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
If PNC resigns as Administrative Agent under this Section 9.6, PNC shall also
resign as an Issuing Lender. Upon the appointment of a successor Administrative Agent
hereunder, such successor shall (i) succeed to all of the rights, powers, privileges and duties
of PNC as the retiring Issuing Lender and Administrative Agent and PNC shall be
discharged from all of its respective duties and obligations as Issuing Lender and
Administrative Agent under the Loan Documents, and (ii) issue letters of credit in
substitution for the Letters of Credit issued by PNC, if any, outstanding at the time of such
succession or make other arrangement satisfactory to PNC to effectively assume the
obligations of PNC with respect to such Letters of Credit.
9.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
and the Issuing Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on
such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender and the Issuing Lender also
acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other
Loan Document or any related agreement or any document furnished hereunder or
thereunder.
9.8 No Other Duties, etc. Anything herein to the contrary notwithstanding, to
the extent applicable, no syndication agent, documentation agent, lead arranger or
bookrunner, whether acting individually or jointly, listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or
the Issuing Lender hereunder.
9.9 Administrative Agent's Fee. The Borrower shall pay to the Administrative
Agent a nonrefundable fee (the "Administrative Agent's Fee") under the terms of a letter
(the "Administrative Agent's Letter") between the Borrower and Administrative Agent,
as amended from time to time.
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9.10 Authorization to Release Collateral and Guarantors. The Lenders and
Issuing Lenders authorize the Administrative Agent to release (i) any Collateral consisting
of assets or equity interests sold or otherwise disposed of in a sale or other disposition or
transfer permitted under Section 7.2.7 [Dispositions of Assets or Subsidiaries] or Section
7.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], (ii) all Collateral on the
Release Date, (iii) any Collateral or Guarantor in accordance with Section 5.2.2
[Designation of Immaterial Domestic Subsidiary] and (ivand (ii) any Guarantor from its
obligations under the Guaranty Agreement if the ownership interests in such Guarantor are
sold or otherwise disposed of or transferred to persons other than Loan Parties or
Subsidiaries of the Loan Parties in a transaction permitted under Section 7.2.7
[Dispositions of Assets or Subsidiaries] or Section 7.2.6 [Liquidations, Mergers,
Consolidations, Acquisitions].
9.11 No Reliance on Administrative Agent's Customer Identification Program.
Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates,
participants or assignees, may rely on the Administrative Agent to carry out such Lender's,
Affiliate's, participant's or assignee's customer identification program, or other obligations
required or imposed under or pursuant to the USA Patriot Act or the regulations
thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended
or replaced, the "CIP Regulations"), or any other Anti-Terrorism Law, including any
programs involving any of the following items relating to or in connection with any of the
Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions
hereunder or contemplated hereby: (i) any identity verification procedures, (ii) any
recordkeeping, (iii) comparisons with government lists, (iv) customer notices or (v) other
procedures required under the CIP Regulations or such other Laws.
10. MISCELLANEOUS
10.1 Modifications, Amendments or Waivers. With the written consent of the
Required Lenders (or as expressly contemplated by Section 2.12 [Increase in Revolving
Credit Commitments]), the Administrative Agent, acting on behalf of all the Lenders, and
the Borrower, on behalf of the Loan Parties, may from time to time enter into written
agreements amending or changing any provision of this Agreement or any other Loan
Document or the rights of the Lenders or the Loan Parties hereunder or thereunder, or may
grant written waivers or consents hereunder or thereunder. Any such agreement, waiver or
consent made with such written consent shall be effective to bind all the Lenders and the
Loan Parties; provided, that no such agreement, waiver or consent may be made which
will:
10.1.1 Increase of Commitment. Increase the amount of the
Revolving Credit Commitment of any Lender hereunder without the consent of such
Lender;
10.1.2 Extension of Payment; Reduction of Principal, Interest or
Fees; Modification of Terms of Payment. Whether or not any Loans are outstanding,
extend the Expiration Date or the time for payment of principal or interest of any Loan
(excluding the due date of any mandatory prepayment of a Loan), the Commitment Fee or
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any other fee payable to any Lender, or reduce the principal amount of or the rate of interest
borne by any Loan (other than as a result of waiving the applicability of any post-default
increase in interest rates) or reduce the Commitment Fee or any other fee payable to any
Lender, without the consent of each Lender directly affected thereby;
10.1.3 Release of Collateral or Guarantor. Except (i) for
dispositions of assets permitted by Section 7.2.7 [Dispositions of Assets or Subsidiaries],
(ii) the release of all Collateral on the Release Date, (iii) in accordance with Section 5.2.2
[Designation of Immaterial Domestic Subsidiary] or (iv) as otherwise contemplated by
Section 9.10 [Authorization to Release Collateral and Guarantors], release all or
substantially all of the Collateral or any Guarantor from its Obligations under the Guaranty
Agreement without the consent of all Lenders (other than Defaulting Lenders); or
10.1.4 Miscellaneous. Amend the definition of “Optional
Currency” or Section 2.11.2(iii) [Requests for Additional Optional Currencies], Section
4.2 [Pro Rata Treatment of Lenders], Section 9.3 [Exculpatory Provisions] or Section 4.3
[Sharing of Payments by Lenders] or this Section 10.1, alter any provision regarding the
pro rata treatment of the Lenders or requiring all Lenders to authorize the taking of any
action or reduce any percentage specified in the definition of Required Lenders, in each
case without the consent of all of the Lenders;
provided that no agreement, waiver or consent which would modify the interests, rights or
obligations of the Administrative Agent, the Issuing Lender, or the Swing Loan Lender
may be made without the written consent of the Administrative Agent, the Issuing Lender
or the Swing Loan Lender, as applicable, and provided, further that, if in connection with
any proposed waiver, amendment or modification referred to in Sections 10.1.1 through
10.1.4 above, the consent of the Required Lenders is obtained but the consent of one or
more of such other Lenders whose consent is required is not obtained (each a
"Non-Consenting Lender"), then the Borrower shall have the right to replace any such
Non-Consenting Lender with one or more replacement Lenders pursuant to Section 4.6.2
[Replacement of a Lender]. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder (and any amendment, waiver or consent which by its terms requires the
consent of all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any
Defaulting Lender may not be increased or extended without the consent of such Lender,
and (y) any waiver, amendment or modification requiring the consent of all Lenders or
each affected Lender that by its terms affects any Defaulting Lender disproportionately
adversely relative to other affected Lenders shall require the consent of such Defaulting
Lender.
10.2 No Implied Waivers; Cumulative Remedies. No course of dealing and no
delay or failure of the Administrative Agent or any Lender in exercising any right, power,
remedy or privilege under this Agreement or any other Loan Document shall affect any
other or future exercise thereof or operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any further exercise thereof or of any other right, power, remedy
or privilege. The rights and remedies of the Administrative Agent and the Lenders under
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this Agreement and any other Loan Documents are cumulative and not exclusive of any
rights or remedies which they would otherwise have.
10.3 Expenses; Indemnity; Damage Waiver.
10.3.1 Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of outside counsel for the
Administrative Agent), in connection with the syndication of the credit facilities provided
for herein, the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or waivers
of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Lender in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder, (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, any Lender or the Issuing Lender
(including the fees, charges and disbursements of any outside counsel for the
Administrative Agent, any Lender or the Issuing Lender) in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Section, or (B) in connection with the
Loans made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit, and (iv) all reasonable out-of-pocket expenses of the
Administrative Agent's regular employees and agents engaged periodically to perform
audits of the Loan Parties' books, records and business properties.
10.3.2 Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the
Issuing Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless
each Indemnitee from all fees and time charges and disbursements for attorneys who may
be employees of any Indemnitee, incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the
performance or nonperformance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the Issuing Lender to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) breach of representations,
warranties or covenants of the Borrower under the Loan Documents, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
including any such items or losses relating to or arising under Environmental Laws or
pertaining to environmental matters, whether based on contract, tort or any other theory,
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whether brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Borrower or such Loan
Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction. This Section 10.3.2 [Indemnification by
the Borrower] shall not apply with respect to Taxes other than any Taxes that represent
losses, claims, damages, etc. arising from any non-Tax claim.
10.3.3 Reimbursement by Lenders. To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under Sections
10.3.1 [Costs and Expenses] or 10.3.2 [Indemnification by the Borrower] to be paid by it to
the Administrative Agent (or any sub-agent thereof), the Issuing Lender or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the Issuing Lender or such Related Party, as the case may
be, such Lender's Ratable Share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or any such sub-agent) or the Issuing Lender in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent)
or Issuing Lender in connection with such capacity.
10.3.4 Waiver of Consequential Damages, Etc. To the fullest
extent permitted by applicable Law, no Person party hereto shall assert, and each such
Person hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in Section 10.3.2 [Indemnification by Borrower] shall
be liable for any damages arising from the use by unintended recipients of any information
or other materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby, except to the extent such
damages arise from the gross negligence or willful misconduct of an Indemnitee as
determined by a final non-appealable judgment of a court of competent jurisdiction.
10.3.5 Payments. All amounts due under this Section shall be
payable not later than ten (10) days after demand therefor.
10.4 Holidays. Whenever payment of a Loan to be made or taken hereunder
shall be due on a day which is not a Business Day such payment shall be due on the next
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Business Day (except as provided in Section 3.2 [Interest Periods]) and such extension of
time shall be included in computing interest and fees, except that the Loans shall be due on
the Business Day preceding the Expiration Date if the Expiration Date is not a Business
Day. Whenever any payment or action to be made or taken hereunder (other than payment
of the Loans) shall be stated to be due on a day which is not a Business Day, such payment
or action shall be made or taken on the next following Business Day, and such extension of
time shall not be included in computing interest or fees, if any, in connection with such
payment or action.
10.5 Notices; Effectiveness; Electronic Communication.
10.5.1 Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as provided in
Section 10.5.2 [Electronic Communications]), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier (i) if to a Lender, to it at
its address set forth in its administrative questionnaire, or (ii) if to any other Person, to it at
its address set forth on Schedule 1.1(B).
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening
of business on the next Business Day for the recipient). Notices delivered through
electronic communications to the extent provided in Section 10.5.2 [Electronic
Communications], shall be effective as provided in such Section.
10.5.2 Electronic Communications. Notices and other
communications to the Lenders and the Issuing Lender hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices to any Lender or the Issuing Lender if such Lender or the Issuing
Lender, as applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures
approved by it; provided that approval of such procedures may be limited to particular
notices or communications. Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed received upon
the sender's receipt of an acknowledgement from the intended recipient (such as by the
"return receipt requested" function, as available, return e-mail or other written
acknowledgement); provided that if such notice or other communication is not sent during
the normal business hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the next Business Day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address as
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described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
10.5.3 Change of Address, Etc. Any party hereto may change its
address, e-mail address or telecopier number for notices and other communications
hereunder by notice to the other parties hereto.
10.6 Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or unenforceable in
whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
10.7 Duration; Survival. All representations and warranties of the Loan Parties
contained herein or made in connection herewith shall survive the execution and delivery
of this Agreement, the completion of the transactions hereunder and Payment In Full. All
covenants and agreements of the Borrower contained herein relating to the payment of
principal, interest, premiums, additional compensation or expenses and indemnification,
including those set forth in the Notes, Section 4 [Payments] and Section 10.3 [Expenses;
Indemnity; Damage Waiver], shall survive Payment In Full. All other covenants and
agreements of the Loan Parties shall continue in full force and effect from and after the date
hereofClosing Date and until Payment In Full.
10.8 Successors and Assigns.
10.8.1 Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns permitted hereby, except that neither the Borrower nor
any other Loan Party may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an assignee in accordance with the provisions of Section 10.8.2 [Assignments
by Lenders], (ii) by way of participation in accordance with the provisions of Section
10.8.4 [Participations], or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of Section 10.8.5 [Certain Pledges; Successors and Assigns Generally]
(and any other attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in Section 10.8.4 [Participations] and, to the
extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
10.8.2 Assignments by Lenders. Any Lender may at any time
assign to one or more assignees all or a portion of its rights and obligations under this
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Agreement (including all or a portion of its Commitment and the Loans at the time owing
to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and
(B) in any case not described in clause (i)(A) of this
Section 10.8.2, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption Agreement with
respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption Agreement, as of the Trade Date) shall not be
less than Five Million and 00/100 Dollars ($5,000,000.00), in the case of any assignment in
respect of the Revolving Credit Commitment of the assigning Lender, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed).
(ii) Proportionate Amounts. Each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loan or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any
assignment except for the consent of the Administrative Agent (which shall not be
unreasonably withheld or delayed) and:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be
deemed to have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within five (5) Business Days after having received
notice thereof; and
(B) the consent of the Issuing Lender (such consent not
to be unreasonably withheld or delayed) shall be required for any assignment that increases
the obligation of the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding).
(iv) Assignment and Assumption Agreement. The parties to
each assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption Agreement, together with a processing and recordation fee of Three Thousand
Five Hundred and 00/100 Dollars ($3,500.00), and the assignee, if it is not a Lender, shall
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deliver to the Administrative Agent an administrative questionnaire provided by the
Administrative Agent.
(v) No Assignment to Certain Persons. No such assignment
shall be made to (A) the Borrower or any of the Borrower's Affiliates or Subsidiaries or (B)
to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a
Lender hereunder, would constitute a Defaulting Lender or a Subsidiary thereof.
(vi) No Assignment to Natural Persons. No such assignment
shall be made to a natural person (or a holding company, investment vehicle or trust for, or
owned and operated for the primary benefit of, a natural person).
Subject to acceptance and recording thereof by the Administrative Agent pursuant to
Section 10.8.3 [Register], from and after the effective date specified in each Assignment
and Assumption Agreement, the assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption Agreement,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Assumption
Agreement, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption Agreement covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.4 [Rate Unascertainable; Etc.], 4.8
[Increased Costs], and 10.3 [Expenses, Indemnity; Damage Waiver] with respect to facts
and circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 10.8.2 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance with
Section 10.8.4 [Participations].
10.8.3 Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain a record of the names and addresses of
the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time. Such register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is in such register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. Such register shall be available
for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
10.8.4 Participations. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell participations to
any Person (other than (a) a natural person (or a holding company, investment vehicle or
trust for, or owned and operated for the primary benefit of, a natural person), (b) the
Borrower or any of the Borrower's Affiliates or Subsidiaries or (c) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute a Defaulting Lender or a Subsidiary thereof) (each, a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement (including all
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or a portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the Lenders, and the Issuing
Lender shall continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree (other than as is already provided for
herein) to any amendment, modification or waiver with respect to Sections 10.1.1 [Increase
of Commitment], 10.1.2 [Extension of Payment, Etc.], or 10.1.3 [Release of Collateral or
Guarantor]) that affects such Participant. The Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.4 [Rate Unascertainable, Etc.], 4.8 [Increased
Costs], 4.10 [Indemnity] and 4.9 [Taxes] (subject to the requirements and limitations
therein, including the requirements under Section 4.9.7 [Status of Lenders] (it being
understood that the documentation required under Section 4.9.7 [Status of Lenders] shall
be delivered to the participating Lender)) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 10.8.2 [Assignments by Lenders];
provided that such Participant (A) agrees to be subject to the provisions of Section 4.6.2
[Replacement of a Lender] and Section 4.6.3 [Designation of a Different Lending Office]
as if it were an assignee under Section 10.8.2 [Assignments by Lenders]; and (B) shall not
be entitled to receive any greater payment under Sections 4.8 [Increased Costs] or 4.9
[Taxes], with respect to any participation, than its participating Lender would have been
entitled to receive, except to the extent such entitlement to receive a greater payment
results from a Change in Law that occurs after the Participant acquired the applicable
participation. Each Lender that sells a participation agrees, at the Borrower's request and
expense, to use reasonable efforts to cooperate with the Borrower to effectuate the
provisions of Section 4.6.2 [Replacement of a Lender] and Section 4.6.3 [Designation of
Different Lending Office] with respect to any Participant. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 8.2.3 [Set-off] as though it
were a Lender; provided that such Participant agrees to be subject to Section 4.3 [Sharing
of Payments by Lenders] as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as an agent of the Borrower, maintain a register on
which it enters the name and address of each Participant and the principal amounts (and
stated interest) of each Participant's interest in the Loans or other obligations under the
Loan Documents (the "Participant Register"); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register (including the identity of
any Participant or any information relating to a Participant's interest in any commitments,
loans, letters of credit or its other obligations under any Loan Document) to any Person
except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of
the United States Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each Person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of
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this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
10.8.5 Certain Pledges; Successors and Assigns Generally. Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights
under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
10.9 Confidentiality.
10.9.1 General. Each of the Administrative Agent, the Lenders
and the Issuing Lender agrees to maintain the confidentiality of the Information, except
that Information may be disclosed (i) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (iii) to the extent required by applicable Laws
or regulations or by any subpoena or similar legal process, (iv) to any other party hereto,
(v) in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (vi) subject to an
agreement containing provisions substantially the same as those of this Section, to (A) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (B) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (vii) with the consent of the Borrower or (viii) to the extent such Information
(Y) becomes publicly available other than as a result of a breach of this Section or (Z)
becomes available to the Administrative Agent, any Lender, the Issuing Lender or any of
their respective Affiliates on a nonconfidential basis from a source other than the Borrower
or the other Loan Parties. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.
10.9.2 Sharing Information With Affiliates of the Lenders. Each
Loan Party acknowledges that from time to time financial advisory, investment banking
and other services may be offered or provided to the Borrower or one or more of its
Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or
more Subsidiaries or Affiliates of such Lender and each of the Loan Parties hereby
authorizes each Lender to share any information delivered to such Lender by such Loan
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Party and its Subsidiaries pursuant to this Agreement to any such Subsidiary or Affiliate
subject to the provisions of Section 10.9.1 [General].
10.10 Counterparts; Integration; Effectiveness.
10.10.1 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Agreement and the other Loan Documents, and any
separate letter agreements with respect to fees payable to the Administrative Agent,
constitute the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof including any prior confidentiality agreements and commitments.
Except as provided in Section 6 [Conditions Of Lending And Issuance Of Letters Of
Credit], this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts
hereof that, when taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy or
e-mail shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11 CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF
VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
10.11.1 Governing Law. This Agreement shall be deemed to be a
contract under the Laws of the Commonwealth of Pennsylvania without regard to its
conflict of laws principles. Each standby Letter of Credit issued under this Agreement
shall be subject either to the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce (the
"ICC") at the time of issuance ("UCP") or the rules of the International Standby Practices
(ICC Publication Number 590) ("ISP98"), as determined by the Issuing Lender, and each
Commercial Letter of Credit shall be subject to UCP, and in each case to the extent not
inconsistent therewith, the Laws of the Commonwealth of Pennsylvania without regard to
its conflict of laws principles.
10.11.2 SUBMISSION TO JURISDICTION. THE BORROWER
AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF
PENNSYLVANIA SITTING IN ALLEGHENY COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE WESTERN DISTRICT OF PENNSYLVANIA,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
PENNSYLVANIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
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BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE ISSUING LENDER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER
LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
10.11.3 WAIVER OF VENUE. THE BORROWER AND EACH
OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED
TO IN THIS SECTION 10.11. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
AND AGREES NOT ASSERT ANY SUCH DEFENSE.
10.11.4 SERVICE OF PROCESS. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 10.5 [NOTICES; EFFECTIVENESS;
ELECTRONIC COMMUNICATION]. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.11.5 WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN 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, ADMINISTRATIVE 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 AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
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10.12 USA Patriot Act Notice. Each Lender that is subject to the USA Patriot Act
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
Loan Parties that pursuant to the requirements of the USA Patriot Act, it is required to
obtain, verify and record information that identifies the Loan Parties, which information
includes the name and address of Loan Parties and other information that will allow such
Lender or Administrative Agent, as applicable, to identify the Loan Parties in accordance
with the USA Patriot Act.
10.13 Acknowledgement and Consent to Bail-In of EEA Financial Institutions
Contractual Recognition of Bail-In. Notwithstanding anything to the contrary in any Loan
Document or in any other agreement, arrangement or understanding among any such
parties, each party hereto acknowledges that any liability of any Lender that is an EEA
Financial Institution arising under any Loan Document, to the extent such liability is
unsecured, may be subject to the write-down and conversion powers of an EEA Resolution
Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(i) the application of any Write-Down and Conversion Powers
by an EEA Resolution Authority to any such liabilities arising hereunder which may be
payable to it by any Lender that is an EEA Financial Institution; and
(ii) the effects of any Bail-in Action on any such liability,
including, if applicable:
(a) a reduction in full or in part or cancellation of any
such liability;
(b) a conversion of all, or a portion of, such liability
into shares or other instruments of ownership in such EEA Financial Institution, its parent
undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and
that such shares or other instruments of ownership will be accepted by it in lieu of any
rights with respect to any such liability under this Agreement or any other Loan Document;
or
(c) the variation of the terms of such liability in
connection with the exercise of the write-down and conversion powers of any EEA
Resolution Authority.
10.14 No Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), the Borrower
acknowledges and agrees that: (i) (A) the arranging and other services regarding this
Agreement provided by the Lenders are arm’s-length commercial transactions between the
Borrower and its Affiliates, on the one hand, and the Lenders, on the other hand, (B) the
Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated hereby and by
the other Loan Documents; (ii) (A) each of the Lenders is and has been acting solely as a
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principal and, except as expressly agreed in writing by the relevant parties, has not been, is
not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its
Affiliates, or any other Person and (B) no Lender has any obligation to the Borrower or any
of its Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) each of the
Lenders and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and no Lender
has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the
fullest extent permitted by law, the Borrower hereby waives and releases any claims that it
may have against each of the Lenders with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
10.15 Joinder of Guarantors. Any Subsidiary of any Loan Party which is required
to join this Agreement pursuant to Section 7.2.9 [Subsidiaries and Joint Ventures] or
Section 7.2.6 [Liquidations, Mergers, Consolidations, Acquisitions] shall execute and
deliver to the Administrative Agent a Guarantor Joinder and (ii) documents in the forms
described in Section 6.1 [First Loans and Letters of Credit] that the Administrative Agent
may reasonably require, modified as appropriate to relate to such Subsidiary, including,
without limitation, organizational documents, legal opinions and, if the Release Date has
not occurred, documents necessary to grant and perfect Prior Security Interests to the
Administrative Agent for the benefit of the Lenders in the equity interests of, and Collateral
(including, without limitation, a pledge of the equity interests of any Domestic Subsidiary
of such Subsidiary) held by, such Subsidiary. The Loan Parties shall deliver such
Guarantor Joinder and all related documents required by this Section 10.15 [Joinder of
Guarantors] to the Administrative Agent (a) with respect to any Subsidiary incorporated or
otherwise formed pursuant to Section 7.2.9 [Subsidiaries and Joint Ventures], within
forty-five (45) days after the date of the filing of such Subsidiary's articles of incorporation
if the Subsidiary is a corporation, the date of the filing of its certificate of limited
partnership if it is a limited partnership or the date of its organization if it is an entity other
than a limited partnership or corporation, (b) with respect to any Subsidiary acquired
pursuant to Section 7.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], within
thirty (30) days after the date of consummation of the applicable Permitted Acquisition or
(c) with respect to any Subsidiary required to be removed from being listed as an
Immaterial Domestic Subsidiary pursuant to the terms of this Agreement, within the
timeframe set forth in Section 7.1.11 [Immaterial Domestic Subsidiaries] (and any such
Subsidiary shall continue to be deemed an Immaterial Domestic Subsidiary until such
Guarantor Joinder and related documentation is delivered).
10.16 Release of Collateral Securing the Obligations. Upon the satisfaction of the
Release Trigger Conditions, the Borrower may, at its option, provide written notice to the
Administrative Agent requesting that the Administrative Agent release all of its Liens in
the Collateral (such written notice, a "Release Request"), and upon receipt of such Release
Request, the Administrative Agent shall promptly release its Liens in all Collateral.
Notwithstanding the foregoing, if subsequent to the satisfaction of the Release Trigger
Conditions but prior to delivery of the Release Request by the Borrower either (i) the
Borrower submits a Compliance Certificate in accordance with Section 7.3.4 [Certificate
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of the Borrower] that reflects a Leverage Ratio of greater than 2.50 to 1.00, or (ii) an Event
of Default has occurred and is continuing, then the Borrower shall not be entitled to deliver
the Release Request until the Release Trigger Conditions are subsequently satisfied again.
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