AMENDMENT NO. 2 TO THE CREDIT AGREEMENT
EXECUTION COPY
Exhibit 10.1
AMENDMENT NO. 2 TO THE
CREDIT AGREEMENT
Dated as of October 31, 2022
AMENDMENT NO. 2 TO THE CREDIT AGREEMENT (this “Amendment”) between THE WESTERN UNION COMPANY, a Delaware corporation (the “Company”), and CITIBANK, N.A., as administrative agent (the “Administrative Agent”) for the Banks (as defined below).
PRELIMINARY STATEMENTS:
(1) The Company, the banks, financial institutions and other institutional lenders party thereto (collectively, the “Banks”) and the Administrative Agent are parties to that certain Amended and Restated Credit Agreement, dated as of December 18, 2018 (as amended by Letter Amendment No. 1 dated as of May 11, 2020, the “Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.
(2) In accordance with Section 2.11(b) of the Credit Agreement, the Company and the Administrative Agent have agreed to amend the Credit Agreement to incorporate successor rates to the LIBOR Rate.
(3) The parties hereto have agreed to make certain amendments to the Credit Agreement as set forth in, and in accordance with the terms and conditions of, this Amendment (the Credit Agreement as so amended, the “Amended Credit Agreement”).
(a) The Administrative Agent shall have received counterparts of this Amendment executed by the Company and the Administrative Agent.
(b) The Administrative Agent shall not have received, within five Business Days of the date a copy of this Amendment is provided to the Banks, a written notice from the Majority Banks stating that such Majority Banks object to this Amendment.
1
(b) The Credit Agreement and the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender, the Administrative Agent or the Company under the Credit Agreement or any other Loan Document, nor constitute a waiver of any provision of the Credit Agreement or any other Loan Document.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
THE WESTERN UNION COMPANY
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
CITIBANK, N.A., as Administrative Agent
By: /s/ Xxxxxxx X Xxxxxx
Name: Xxxxxxx X Xxxxxx
Title: Vice President
3
Annex A
Amended Credit Agreement
(See attached).
4
ANNEX A to AMENDMENT NO. 2 dated as of October 31, 2022
EXECUTION COPY
Conformed for Letter Am No. 1 dated as of May 11, 2020
Published Deal CUSIP: ___________
Published Revolving Facility CUSIP: ___________
____________________________________________________________
AMENDED AND RESTATED
CREDIT AGREEMENT
among
THE WESTERN UNION COMPANY,
as the Company,
THE BANKS NAMED HEREIN,
CITIBANK, N.A.,
as Administrative Agent
BANK OF AMERICA, N.A. and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agents
and
BARCLAYS BANK PLC,
JPMORGAN CHASE BANK, N.A. and
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agents
$1,500,000,000 Revolving Credit Facility
Dated as of December 18, 2018
CITIBANK, N.A.,
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED, and
XXXXX FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Book Runners
______________________________________________________________________________
TABLE OF CONTENTS
Page
SECTION 1
DEFINITIONS
1.1 Defined Terms 2
1.2 Other Definitional Provisions 22
1.3 Accounting Terms 23
1.4 Exchange Rates; Currency Equivalents 23
1.5 Computation of Dollar Amounts 24
1.6 Times of Day 24
SECTION 2
AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments 24
2.2 Notes 24
2.3 Procedure for Borrowing 25
2.4 Fees 26
2.5 Termination or Reduction of Commitments 26
2.6 Prepayments 27
2.7 Conversion and Continuation Options 27
2.8 Minimum Amounts of Tranches 28
2.9 Interest Rates and Payment Dates 29
2.10 Computation of Interest and Fees 29
2.11 Inability to Determine Interest Rate 30
2.12 Pro Rata Treatment and Payments 32
2.13 Illegality 34
- i -
2.14 Requirements of Law 35
2.15 Taxes 37
2.16 Indemnity 41
2.17 Action of Affected Banks 41
2.18 [Reserved] 42
2.19 [Reserved] 42
2.20 Increase of Commitments 42
2.21 Payment in Full at Maturity 43
2.22 Letter of Credit Subfacility 43
2.23 Indemnification of Issuing Lenders; Nature of Issuing Lenders’ Duties. 47
2.24 Defaulting Banks 49
2.25 Extension of Termination Date 51
2.26 Cash Collateral 54
SECTION 3
REPRESENTATIONS AND WARRANTIES
3.1 Financial Condition 55
3.2 No Change 55
3.3 Corporate Existence; Compliance with Law 55
3.4 Corporate Power; Authorization; Enforceable Obligations 56
3.5 No Legal Bar 56
3.6 No Material Litigation 56
3.7 Federal Regulations 57
3.8 Investment Company Act 57
3.9 Purpose of Loans 57
3.10 Disclosure 57
- ii -
3.11 Ranking 57
3.12 AML Laws; Anti-Corruption Laws; Sanctions 57
3.13 EEA Financial Institution 58
SECTION 4
CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness 58
4.2 Conditions to Each Loan 59
SECTION 5
AFFIRMATIVE COVENANTS
5.1 Financial Statements 60
5.2 Certificates; Other Information 61
5.3 Conduct of Business and Maintenance of Existence 62
5.4 Inspection of Property; Books, Records and Discussions 62
5.5 Notices 62
5.6 Taxes 63
SECTION 6
NEGATIVE COVENANTS
6.1 Limitation on Significant Subsidiary Indebtedness 64
6.2 Limitation on Liens 64
6.3 Limitation on Sales and Leasebacks 66
6.4 Limitations on Fundamental Changes 66
6.5 Limitations on Restrictions on Dividends 67
6.6 Financial Covenant 67
6.7 Use of Proceeds 67
- iii -
SECTION 7
EVENTS OF DEFAULT
SECTION 8
THE ADMINISTRATIVE AGENT
8.1 Appointment 70
8.2 Delegation of Duties 70
8.3 Exculpatory Provisions 70
8.4 Reliance by Administrative Agent 72
8.5 Rights as a Bank 72
8.6 Non-Reliance on Administrative Agent and Other Banks 72
8.7 Indemnification by Xxxxx 73
8.8 Resignation of Administrative Agent 73
8.9 No Other Duties, etc. 74
8.10 Administrative Agent May File Proofs of Claim 74
8.11 Lender ERISA Matters 75
SECTION 9
MISCELLANEOUS
9.1 Amendments and Waivers 76
9.2 Notices 77
9.3 No Waiver; Cumulative Remedies 79
9.4 Survival of Representations and Warranties 79
9.5 Payment of Expenses 79
9.6 Successors and Assigns; Participations; Purchasing Banks 80
9.7 Adjustments; Set-off 84
9.8 Table of Contents and Section Headings 86
- iv -
9.9 Confidentiality 86
9.10 Patriot Act Notice; Beneficial Ownership Regulation 86
9.11 Counterparts 87
9.12 Severability 87
9.13 Integration 87
9.14 GOVERNING LAW 87
9.15 Submission To Jurisdiction; Waivers 87
9.16 Acknowledgements 88
9.17 WAIVERS OF JURY TRIAL 88
9.18 Effectiveness 88
9.19 Judgment Currency 89
9.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions 89
9.21 Electronic Execution of Assignments and Certain Other Documents 90
9.22 Amendment and Restatement 90
- v -
Schedules
Schedule 1.1 Banks and Commitments
Schedule 3.6 Material Litigation
Exhibits
Exhibit A Form of Note
Exhibit B Form of Borrowing Certificate
Exhibit C [Reserved]
Exhibit D Form of Commitment Transfer Supplement
Exhibit E Form of Compliance Certificate
Exhibit F Form of Commitment Increase Supplement
Exhibit G Forms of U.S. Tax Compliance Certificates
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 18, 2018, among THE WESTERN UNION COMPANY, a Delaware corporation (the “Company”), the several banks and other financial institutions from time to time parties to this Agreement (the “Banks”), CITIBANK, N.A., BANK OF AMERICA, N.A. and XXXXX FARGO BANK, NATIONAL ASSOCIATION, in their respective capacities as Issuing Lenders (in such capacity, each together with its successors in such capacity, an “Issuing Lender”), BANK OF AMERICA, N.A. and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agents (in such capacity, the “Syndication Agents”), BARCLAYS BANK PLC, JPMORGAN CHASE BANK, N.A. and U.S. BANK NATIONAL ASSOCIATION, as Documentation Agents (in such capacity, the “Documentation Agents”), and CITIBANK, N.A., as administrative agent for the Banks hereunder (in such capacity, the “Administrative Agent”).
BACKGROUND STATEMENT
The Company, the lenders parties thereto and Citibank, as administrative agent, were parties to that certain $1,650,000,000 Credit Agreement dated as of September 29, 2015 (as amended, restated, supplemented, extended or otherwise modified from time to time prior to the date hereof, the “Existing Revolving Credit Agreement”). Subject to the satisfaction of the conditions set forth in Section 4.1, the Company, the parties hereto and Citibank, as Administrative Agent, desire to amend and restate the Existing Revolving Credit Agreement as herein set forth and in connection with such amendment and restatement, to substitute as lenders the Banks listed on Schedule 1.1 hereto.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and of the mutual covenants and agreements herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1
1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“Adjusted Base Rate”: at any time with respect to any Base Rate Loan, a rate per annum equal to the Base Rate as in effect at such time plus the Applicable Margin for Base Rate Loans as in effect at such time.
“Adjusted Term SOFR”: for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Adjusted EURIBO Rate”: with respect to any Term Benchmark Loan denominated in Euro for any Interest Period, a rate per annum equal to the EURIBOR Rate as in effect for such Interest Period plus the Applicable Margin for Term Benchmark Loans as in effect at such time.
“Adjusted XXXXX Xxxx”: at any time with respect to any XXXXX Xxxx, a rate per annum equal to XXXXX as in effect at such time plus the XXXXX Adjustment plus the Applicable Margin for XXXXX Xxxxx as in effect at such time.
“Adjusted LIBORTerm SOFR Rate”: with respect to any LIBORTerm Benchmark Loan denominated in Dollars for any Interest Period, a rate per annum equal to the LIBOR RateAdjusted Term SOFR as in effect for such Interest Period plus the Applicable Margin for LIBORTerm Benchmark Loans as in effect at such time.
“Administrative Questionnaire”: an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affiliate”: as to any Person, any other Person (whether or not existing as at the date hereof) that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons per forming similar functions) of such Person or (ii) direct or cause the direction of the management and policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
“Agreement”: this Amended and Restated Credit Agreement.
“AML Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Company or the Company’s Subsidiaries from time to time concerning or relating to anti-money laundering.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Company or the Company’s Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Margin”: with respect to each day for each Type of Loan and for the Letter of Credit Fee, the rate per annum based on the Ratings in effect on such day as set forth under the relevant column heading below:
Rating |
LIBOR RateTerm Benchmark /XXXXX/Letters of Credit |
Base Rate |
Rating I |
0.900% |
0.000% |
Rating II |
1.000% |
0.000% |
Rating III |
1.100% |
0.100% |
Rating IV |
1.300% |
0.300% |
Rating V |
1.500% |
0.500% |
“Applicable Time”: with respect to any borrowings and payments in Foreign Currencies, the local times in the place of settlement for such Foreign Currencies as may be determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
3
“Approved Fund”: any Fund that is administered or managed by (i) a Bank, (ii) an Affiliate of a Bank or (iii) an entity or an Affiliate of an entity that administers or manages a Bank.
“Available Commitment”: as to any Bank at any time, an amount equal to the excess, if any, of (i) the amount of such Bank’s Commitment over (ii) the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of all Loans made by such Bank then outstanding plus the Bank’s Commitment Percentage of outstanding LOC Obligations at such time.
“Bail-In Action”: 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”: 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.
“Bankruptcy Code”: the Bankruptcy Code in Title 11 of the United States Code.
“Base Rate”: on any day, the highest of (i) the per annum interest rate publicly announced from time to time by Citibank in New York, New York to be its base rate (which may not necessarily be its lowest or best lending rate), as adjusted to conform to changes in such base rate as of the opening of business on such date, (ii) the Federal Funds Rate plus 0.50% per annum, as adjusted to conform to changes in the Federal Funds Rate as of the opening of business on such date and (iii) the LIBOR RateAdjusted Term SOFR for an Interest Period of one month commencing on such date plus 1.0% per annum, as adjusted to conform to changes in such LIBOR RateAdjusted Term SOFR as of the opening of business on such date.
“Base Rate Loan”: any Loan the rate of interest applicable to which is based upon the Adjusted Base Rate.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“Benefit Plan”: as defined in subsection 8.11.
“Borrowing Certificate”: a notice of borrowing and certificate of the Company substantially in the form of Exhibit B.
“Borrowing Date”: any Business Day specified in a notice furnished pursuant to subsection 2.3 as a date on which the Company requests the Banks to make Loans hereunder.
“Business Day”: a day other than a Saturday or Sunday or a day on which commercial banks in New York City, New York, are authorized or required by law to close; provided, however, that (i) when used to describe the date of any borrowing of, or any payment or interest rate determination in respect of, a LIBOR Loan, the term “Business Day” shall also exclude any day on which commercial banks are not open for dealings in Dollar deposits in the London interbank market and (ii) when used in connection with a Foreign Currency Loan, the term “Business Day” shall also exclude any day on which banks are not open for foreign exchange dealings between
4
banks in the exchange of the home country of such Foreign Currency (or, in the case of a Foreign Currency Loan denominated in Euro, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open).
“Capital Stock”: 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 or options to purchase any of the foregoing.
“Cash Collateralize”: to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Lenders or the Banks, as collateral for LOC Obligations or obligations of Banks to fund participations in respect of LOC Obligations (as the context may require), cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Lender shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and each applicable Issuing Lender. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Central Bank Rate”: the sum of (a) the greater of (i) the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time and (ii) zero; plus (b) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment”: for any day, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of XXXXX for the five most recent Business Days preceding such day for which XXXXX was available (excluding, from such averaging, the highest and the lowest such XXXXX determination applicable during such period of five Business Days) minus (ii) the Central Bank Rate in effect on the last Business Day in such period. For purposes of this definition, the term Central Bank Rate shall be determined disregarding clause (b) of the definition of such term.
“Change in Law”: the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control”: any acquisition by any Person or Group of Persons, either directly or indirectly, of (i) the power to elect, appoint or cause the election or appointment of at least a majority of the members of the Board of Directors of the Company (or any other Person to which all or substantially all of the properties and assets of the Company have been transferred), through beneficial ownership of the Capital Stock of the Company (or such other Person) or through
5
contract, agreement, arrangement or proxy, or (ii) all or substantially all of the consolidated properties and assets of the Company.
“Citibank”: Citibank, N.A.
“Closing Date”: the date on which this Agreement becomes effective in accordance with subsection 4.1.
“Code”: the Internal Revenue Code of 1986.
“Commitment”: as to any Bank, the obligation of such Bank (i) to make Loans to the Company hereunder and (ii) to purchase participation interests in the Letters of Credit, in an aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) at any one time outstanding not to exceed the amount set forth opposite such Bank’s name on Schedule 1.1 or in the Commitment Transfer Supplement pursuant to which it became a Bank, as such amount may be reduced pursuant to subsection 2.5 or 9.6 or increased pursuant to subsection 2.20 or 9.6.
“Commitment Percentage”: as to any Bank at any time, the percentage of the aggregate Commitments then constituted by such Bank’s Commitment.
“Commitment Period”: as to any Bank, the period from and including the Closing Date to but not including the Termination Date applicable to such Bank or such earlier date on which the Commitments shall terminate as provided herein.
“Commitment Transfer Supplement”: a commitment transfer supplement entered into by a Bank and an Eligible Assignee (with the consent of any party whose consent is required by subsection 9.6), and accepted by the Administrative Agent, in substantially the form of Exhibit D (or any other form approved by the Administrative Agent and the Company).
“Commonly Controlled Entity”: an entity, whether or not incorporated, which is under common control with the Company within the meaning of Section 4001(b) of ERISA or is part of a group which includes the Company and which is treated as a single employer under Section 414 of the Code.
“Communications”: as defined in subsection 9.2(b).
“Competitor”: any Person significantly and directly engaged in the business of payment instruments or consumer funds transfers.
“Compliance Certificate”: as defined in subsection 5.2(a).
“Confidential Materials”: as defined in subsection 9.9.
“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consenting Bank”: as defined in subsection 2.25(b).
6
“Consolidated Net Assets”: the gross book value of the assets of the Company and its Subsidiaries (which under GAAP would appear on the consolidated balance sheet of the Company and its Subsidiaries) less all reserves (including depreciation, depletion and amortization) applicable thereto and less (i) minority interests and (ii) liabilities (determined in accordance with GAAP) which, in accordance with their terms, will be settled within one year after the date of determination.
“Consolidated Net Income”: the net income of the Company and its Subsidiaries (which under GAAP would appear on the consolidated income statement of the Company and its Subsidiaries), excluding, however, (i) any equity of the Company or a Subsidiary in the unremitted earnings of any corporation which is not a Subsidiary, (ii) gains from the write-up in the book value of any asset and (iii) in the case of an acquisition of any Person which is accounted for on a purchase basis, earnings of such Person prior to its becoming a Subsidiary.
“Consolidated Total Assets”: the gross book value of the assets of the Company and its Subsidiaries (which under GAAP would appear on the consolidated balance sheet of the Company and its Subsidiaries).
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Covenant Indebtedness”: as defined in subsection 6.6.
“Debtor Relief Laws”: means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States of America or other applicable jurisdictions from time to time in effect.
“Default”: any of the events specified in Section 7, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“Defaulting Bank”: subject to subsection 2.24(b), any Bank that (i) has failed to (A) perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit, within three Business Days of the date required to be funded by it hereunder unless such Bank notifies the Administrative Agent and the Company in writing that such failure is the result of such Bank’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (B) pay to the Administrative Agent, any Issuing Lender or any other Bank any other amount required to be paid by it hereunder (including in respect of its Participation Interests) within two Business Days of the date when due; (ii) has notified the Company, the Administrative Agent or any Issuing Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Bank’s obligation to fund a Loan hereunder and states that such position is based on such Bank’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied); (iii) has failed,
7
within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (iii) upon receipt of such written confirmation by the Administrative Agent and the Company); or (iv) has, or has a direct or indirect parent company that has, (A) become the subject of a proceeding under any Debtor Relief Law or become the subject of a Bail-In Action or (B) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors (other than by way of an Undisclosed Administration (as defined below) that is not expected to impair or delay the funding of any obligation of such Bank hereunder) or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Bank shall not be a Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Bank with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Bank (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Bank. Any determination by the Administrative Agent that a Bank is a Defaulting Bank under any one or more of clauses (i) through (iv) above shall be conclusive and binding absent demonstrable error, and such Bank shall be deemed to be a Defaulting Bank (subject to subsection 2.24(b)) upon delivery of written notice of such determination to the Company, each Issuing Lender and each Bank. “Undisclosed Administration” means in relation to a Bank the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Bank is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.
“Dollar Amount”: at any time, (i) with respect to Dollars or an amount denominated in Dollars, such amount and (ii) with respect to an amount of any Foreign Currency or an amount denominated in such Foreign Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) applicable to such Foreign Currency.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“EBITDA”: for any period, net income (or net loss) plus the sum of (i) interest expense, (ii) income tax expense, (iii) depreciation expense, (iv) amortization expense, (v) any other noncash deductions, losses or charges made in determining net income for such period and (vi) extraordinary, non-recurring or unusual losses, expenses or charges (including costs and expenses of litigation included in operating income); provided that the amount added back to net income (or net loss) pursuant to this clause (vi) in respect of any such extraordinary, non-recurring or unusual losses, expenses or charges (including costs and expenses of litigation included in operating income) shall not exceed 10% of EBITDA (calculated before giving effect to this clause (vi) in the aggregate for any period of four consecutive fiscal quarters of the Company), and minus extraordinary, non-recurring or unusual gains, in each case determined in accordance with GAAP for such period. For the purpose of calculating EBITDA for any period, if during such period the
8
Company or any Subsidiary shall have consummated a Specified Transaction, EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Specified Transaction occurred on the first day of such calculation period.
“EEA Financial Institution”: (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”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: 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.
“Eligible Assignee”: any Person that meets the requirements to be an assignee under subsection 9.6(b)(iii), 9.6(b)(v) and 9.6(b)(vi) (subject to such consents, if any, as may be required under subsection 9.6(b)(iii)).
“EMU”: Economic and Monetary Union as contemplated in the Treaty on European Union.
“EMU Legislation”: legislative measures of the European Council (including European Council regulations) for the introduction of, changeover to or operation of a single or unified European currency (whether known as the Euro or otherwise), being in part the implementation of the third stage of EMU.
“Environmental Laws”: any and all Federal, foreign, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority regulating, relating to or imposing liability or standards of conduct concerning environmental protection matters.
“ERISA”: the Employee Retirement Income Security Act of 1974.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EURIBOR Loan”: at any time, any Loan that bears interest at such time at the applicable Adjusted EURIBO Rate.
“EURIBOR Rate”: for any Interest Period with respect to any Term Benchmark Loan denominated in Euros, an interest rate per annum obtained by dividing (i) (x) the Euro Interbank Offered Rate (“EURIBOR”) administered by the European Money Markets Institute (or any other person who takes over the administration of that rate) for the relevant period displayed on the applicable Bloomberg screen page (or such other commercially available source providing such
9
quotations as may be designated by the Administrative Agent from time to time (with the consent of the Company, not to be unreasonably withheld, conditioned or delayed)) for purposes of providing quotations of interests rates for offering of deposits in Euros at approximately 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period for a period substantially equal to such Interest Period, by (ii) the amount equal to 1.00 minus the Reserve Requirement (expressed as a decimal) for such Interest Period; provided that, if the EURIBOR Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Euro” shall mean the single currency of Participating Member States of the European Union.
“Event of Default”: any of the events specified in Section 7; provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“Excluded Individuals”: with respect to any Person, the officers, directors, employees, agents and representatives of such Person involved, directly or indirectly, in the payment instruments and consumer funds transfer business of such Person.
“Excluded Taxes”: 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, imposed by the United States of America (or any political subdivision thereof) or as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Bank, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof); (ii) in the case of a Bank, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Bank acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under subsection 2.17(b)) or (B) such Bank changes its lending office, except in each case to the extent that, pursuant to subsection 2.15, amounts with respect to such Taxes were payable either to such Bank’s assignor immediately before such Bank became a party hereto or to such Bank immediately before it changed its lending office; (iii) Taxes attributable to such Recipient’s failure to comply with subsection 2.15(f); (iv) any Taxes imposed under FATCA; and (v) Other Connection Taxes.
“Existing Revolving Credit Agreement”: as defined in the recitals hereto.
“Extension of Credit”: as to any Bank, the making of a Loan by such Bank or the issuance of, or participation in, a Letter of Credit by such Bank.
“Extension Date”: as defined in subsection 2.25(b).
“Facility Fee Rate”: for each day during each calculation period, a rate per annum based on the Ratings in effect on such day, as set forth below:
10
Rating |
Facility Fee Rate |
Rating I |
0.100% |
Rating II |
0.125% |
Rating III |
0.150% |
Rating IV |
0.200% |
Rating V |
0.250% |
“FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any applicable intergovernmental agreements between a non-U.S. jurisdiction and the United States of America with respect thereto, any law, regulations, or other official guidance enacted in a non-U.S. jurisdiction relating to an intergovernmental agreement related thereto, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” means, for any day, the rate published for such day (or, if such day is not a Business Day, published for the immediately preceding Business Day) by the Federal Reserve Bank of New York for overnight Federal funds transactions with members of the Federal Reserve System, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent; provided that, if the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Federal Reserve Board”: the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions.
“Fee Letters”: collectively, (i) the letter agreement dated November 9, 2018, addressed to the Company from the Administrative Agent and Citigroup Global Markets Inc., (ii) the letter agreement dated November 9, 2018, addressed to the Company from Bank of America, N.A. and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, and (iii) the letter agreement dated November 9, 2018, addressed to the Company from Xxxxx Fargo Bank, National Association and Xxxxx Fargo Securities, LLC.
“Financing Lease”: any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP as in effect on December 18, 2018, to be capitalized on a balance sheet of the lessee, without regard to any classification or reclassification as financing or operating leases upon the Company’s adoption of Accounting Standards Codification 842, Leases.
“Foreign Currency”: (i) Euros and (ii) British Pound Sterling.
“Foreign Currency Equivalent”: with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Foreign Currency as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) applicable to such Foreign Currency.
11
“Foreign Currency Loan”: any Loan denominated in a Foreign Currency.
“Foreign Lender”: any Bank that is not a U.S. Person.
“Fronting Exposure”: at any time there is a Defaulting Bank, with respect to any Issuing Lender, such Defaulting Bank’s Commitment Percentage of the outstanding LOC Obligations with respect to Letters of Credit issued by such Issuing Lender other than LOC Obligations as to which such Defaulting Bank’s participation obligation has been reallocated to other Banks or Cash Collateralized in accordance with the terms hereof.
“Fund”: any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funded Indebtedness”: any indebtedness for money borrowed, created, issued, incurred, assumed or guaranteed which would, in accordance with GAAP, be classified as long-term debt, but in any event including all indebtedness for money borrowed, whether secured or unsecured, maturing more than one year, or extendible at the option of the obligor to a date more than one year, after the date of determination thereof (excluding any amount thereof included in current liabilities).
“GAAP”: generally accepted accounting principles in the United States of America, as set forth in the Accounting Standards Codification of the Financial Accounting Standards Board, consistently applied and maintained, as in effect from time to time (subject to the provisions of subsection 1.3).
“Government Acts”: as defined in subsection 2.23(a).
“Governmental Authority”: any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Group of Persons” means any related Persons that would constitute a “group” for purposes of Section 13(d) and Rule 13d-5 under the Securities Exchange Act of 1934 (as such Section and Rule are in effect as of the date of this Agreement).
“Guarantee Obligation”: as to any Person (the “guaranteeing person”), and without duplication, any obligation of (i) the guaranteeing person or (ii) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing the payment or in effect guaranteeing the payment of any Indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (A) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (B) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor or (C) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make
12
payment of such primary obligation; provided, however, that the term Guarantee Obligation shall not include (x) endorsements of instruments for deposit or collection in the ordinary course of business or (y) any bond or guarantee given by the Company or any Subsidiary on behalf of any Subsidiary solely for the performance of contractual obligations with customers or on behalf of customers in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary payment obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith.
“Hedging Agreement”: any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, events, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions, that is entered into by the Company or any of its Subsidiaries for hedging purposes or in connection with dealer activities.
“Indebtedness”: of any Person at any date and without duplication, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than trade liabilities not more than 60 days past due incurred in the ordinary course of business and payable in accordance with customary practices or endorsements for the purpose of collection in the ordinary course of business and excluding the deferred purchase price of property or services to be repaid through earnings of the purchaser to the extent such amount is not characterized as indebtedness in accordance with GAAP), (ii) any other indebtedness of such Person that is evidenced by a note, bond, debenture or similar instrument, (iii) all obligations of such Person under Financing Leases, (iv) all payment obligations of such Person in respect of acceptances issued or created for the account of such Person and (v) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof; provided that if such Person has not assumed or otherwise become liable in respect of such indebtedness, such obligations shall be deemed to be in an amount equal to the lesser of (x) the amount of such indebtedness and (y) the book value of the property subject to such Lien at the time of determination. For the purposes of this definition, the following shall not constitute Indebtedness: (A) any obligations of the Company or any of its Subsidiaries under any Hedging Agreement and any Guarantee Obligations with respect to Hedging Agreements, and (B) the issuance of payment instruments, consumer funds transfers, or other amounts paid to or received by the Company, any of its Subsidiaries or any agent thereof in the ordinary course of business in order for the Company or such Subsidiary to make further distribution to a third party, to the extent payment in respect thereof has been received by the Company, such Subsidiary or any agent thereof.
“Indemnified Taxes”: (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Company under any Loan Document and (ii) to the extent not otherwise described in clause (i), Other Taxes.
13
“Information Materials”: the Confidential Information Memorandum dated November 9, 2018 in respect of the transactions contemplated hereby sent by the Lead Arrangers to each of the Banks, including all supplements and amendments thereto.
“Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Interest Payment Date”: (i) as to any Base Rate Loan, the last Business Day of each March, June, September and December and, with respect to any Bank holding such a Base Rate Loan, the final Termination Date of such Bank, (ii) as to any LIBORSONIA Loan, the last Business Day of each calendar month and, with respect to any Bank holding such a XXXXX Xxxx, the final Termination Date of such Bank, (iii) as to any Term Benchmark Loan having an Interest Period of three months or less, the last day of such Interest Period and (iiiiv) as to any LIBORTerm Benchmark Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period.
“Interest Period”: with respect to any LIBORTerm Benchmark Loan:
(i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such LIBORTerm Benchmark Loan and ending one, three, or six, or, in the case of EURIBOR Loans and subject to clause (F) of this definition, twelve months thereafter, as selected by the Company in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such LIBORTerm Benchmark Loan and ending one, three, or six, or, in the case of EURIBOR Loans and subject to clause (F) of this definition, twelve months, thereafter, as selected by the Company by irrevocable notice to the Administrative Agent not less than (x) with respect to LIBORTerm Benchmark Loans denominated in Dollars, three Business Days prior to the last day of the then current Interest Period with respect thereto and (y) with respect to LIBORTerm Benchmark Loans denominated in Foreign CurrencyEuro, four Business Days prior to the last day of the then current Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Interest Periods are subject to the following:
(A) if any Interest Period pertaining to a LIBORTerm Benchmark Loan would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(B) the Company may not select any Interest Period that would expire after the final Termination Date;
14
(C) if the Company shall fail to give notice as provided in clause(ii) above, the Company shall be deemed to have selected (i) in the case of Loans denominated in Dollars, a Base Rate Loan to replace the affected LIBORTerm Benchmark Loan and (ii) in the case of Loans denominated in Foreign CurrenciesEuro, an Interest Period of one month;
(D) any Interest Period pertaining to a LIBORTerm Benchmark Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month;
(E) no more than eight LIBORTerm Benchmark Loans may be in effect at any time (for purposes hereof, LIBORTerm Benchmark Loans with different Interest Periods shall be considered as separate LIBORTerm Benchmark Loans, even if they shall begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new LIBORTerm Benchmark Loan with a single Interest Period); and
(F) in the case of any such LIBOREURIBOR Loans, the Company shall not be entitled to select an Interest Period having a duration of twelve months unless, by 2:00 p.m. on the third Business Day prior to the first day of such Interest Period, each Bank notifies the Administrative Agent that such Bank will be providing funding for such LIBOREURIBOR Loans with such Interest Period (the failure of any Bank to so respond by such time being deemed for all purposes of this Agreement as an objection by such Bank to the requested duration of such Interest Period); provided that if any or all of the Banks object to the requested duration of such Interest Period, the duration of the Interest Period for such LIBOREURIBOR Loans shall be one, two, three or six months, as specified by the Company in the applicable Borrowing Certificate as the desired alternative to an Interest Period of twelve months.
“Issuing Lender”: the persons specified in the introductory paragraph hereto, any other Bank so appointed by the Company that agrees to act as an Xxxxxxx Xxxxxx and any successor thereto.
“Issuing Lender Fees”: as defined in subsection 2.4(d).
“Lead Arrangers”: Citibank, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement) and Xxxxx Fargo Securities, LLC.
“Letter of Credit”: any letter of credit issued by an Issuing Lender pursuant to the terms hereof, as such Letter of Credit may be amended, modified, extended, renewed or replaced from time to time.
“Letter of Credit Facing Fee”: as defined in subsection 2.4(d).
“Letter of Credit Fee”: as defined in subsection 2.4(c).
15
“LIBOR Loan”: at any time, any Loan that bears interest at such time at the applicable Adjusted LIBOR Rate.
“LIBOR Rate”: with respect to each LIBOR Loan constituting part of the same borrowing for any Interest Period, (A) with respect to any LIBOR Loan denominated in Dollars, an interest rate per annum obtained by dividing (i) the rate of interest appearing on the applicable Bloomberg screen page equal to the London Interbank Offered Rate, or a comparable or successor rate which rate is approved by the Administrative Agent (with the consent of the Company, not to be unreasonably withheld, conditioned or delayed), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent (with the consent of the Company, not to be unreasonably withheld, conditioned or delayed) from time to time) for Dollar deposits at approximately 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period for a period substantially equal to such Interest Period and in minimum amounts of at least $5,000,000, by (ii) the amount equal to 1.00 minus the Reserve Requirement (expressed as a decimal) for such Interest Period, and (B) with respect to any LIBOR Loan denominated in a Foreign Currency, an interest rate per annum obtained by dividing (i) (x) the rate of interest appearing on the applicable Bloomberg screen page equal to the London Interbank Offered Rate, or a comparable or successor rate which rate is approved by the Administrative Agent (with the consent of the Company, not to be unreasonably withheld, conditioned or delayed), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time (with the consent of the Company, not to be unreasonably withheld, conditioned or delayed)) for deposits in such Foreign Currency at approximately 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period for a period substantially equal to such Interest Period and in minimum amounts of at least $5,000,000, by (ii) the amount equal to 1.00 minus the Reserve Requirement (expressed as a decimal) for such Interest Period; provided that, if the LIBOR Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“LIBOR Successor Rate”: as defined in subsection 2.11(b).
“LIBOR Successor Rate Conforming Changes”: as defined in subsection 2.11(b).
“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any Financing Lease having substantially the same economic effect as any of the foregoing), it being understood that the holding of money or investments for the purpose of honoring payment instruments or consumer funds transfers, or other amounts paid to or received by the Company, any of its Subsidiaries or any agent thereof in the ordinary course of business in order for the Company or such Subsidiary to make further distribution to a third party, shall not be considered a “Lien” for the purposes of this definition.
“Loan Documents”: this Agreement, the LOC Documents and the Notes.
“Loans”: as defined in subsection 2.1(a).
16
“LOC Commitment”: with respect to each Bank, the commitment of such Bank to purchase participation interests in the Letters of Credit up to such Bank’s Commitment Percentage of all LOC Obligations.
“LOC Documents”: with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or (ii) any collateral security for such obligations.
“LOC Mandatory Borrowing”: as defined in subsection 2.22(f).
“LOC Obligations”: at any time, the sum of (i) the maximum amount that is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (ii) the aggregate amount of all drawings under Letters of Credit honored by the Issuing Lenders but not theretofore reimbursed.
“Majority Banks”: at any time, the Banks holding more than 50% of the aggregate unpaid principal amount of the Loans and Participation Interests or, if no Loans and Participation Interests are then outstanding, the Banks holding more than 50% of the aggregate amount of the Commitments; provided that the Loans, Participation Interests and Commitments held or deemed held by any Defaulting Bank shall be excluded for purposes of making a determination of Majority Banks.
“Material Adverse Effect”: a material adverse effect on the ability of the Company to perform its obligations under this Agreement or the other Loan Documents.
“Moody’s”: Xxxxx’x Investors Service, Inc.
“Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Non-Consenting Bank”: any Bank that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Banks in accordance with the terms of subsection 9.1 and (ii) has been approved by the Majority Banks.
“Non-Defaulting Bank”: at any time, each Bank that is not a Defaulting Bank at such time.
“Non-Extending Bank”: as defined in subsection 2.25(b).
“Note”: as defined in subsection 2.2.
“Notice”: as defined in subsection 9.2(c).
“Obligations”: all of the obligations, indebtedness and liabilities of the Company to the Banks (including the Issuing Lenders) and the Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Loan Documents, including principal, interest, fees,
17
reimbursements and indemnification obligations and other amounts (including any interest and fees accruing after the commencement by or against the Company of any proceeding under any Debtor Relief Law naming the Company as the debtor in such proceeding, regardless of whether such interest and fees constitute an allowed claim in such proceeding).
“Other Connection Taxes”: with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”: all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to subsection 2.17).
“Participant”: as defined in subsection 9.6(d).
“Participant Register”: as defined in subsection 9.6(d).
“Participating Member State”: each country so described in any EMU Legislation.
“Participation Interest”: with respect to each Bank and each Letter of Credit, as defined in subsection 2.22(c).
“Patriot Act”: the USA Patriot Act, Title III of Pub. L. 107-56, signed into law October 26, 2001.
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“Person”: an individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, Governmental Authority or other entity of whatever nature.
“Plan”: at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Company or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform”: as defined in subsection 9.2(b).
“Pounds Sterling”: British pounds sterling, the lawful currency of the United Kingdom.
18
“Principal Facility”: the real property, fixtures, machinery and equipment relating to any facility owned by the Company or any Subsidiary, except for any facility that, in the opinion of the Board of Directors of the Company, is not of material importance to the business conducted by the Company and its Subsidiaries, taken as a whole.
“PTE”: as defined in subsection 8.11.
“Purchasing Bank”: as defined in subsection 9.6(b).
“Rating”: the respective rating of each of the Rating Agencies applicable to the long-term senior unsecured non-credit enhanced debt of the Company, as announced by the Rating Agencies from time to time.
“Rating Agencies”: together, S&P and Xxxxx’x, and each a “Rating Agency”.
“Rating Category”: each of Rating I, Rating II, Rating III, Rating IV and Rating V.
“Rating I”, “Rating II”, “Rating III”, “Rating IV” and “Rating V”: the respective Ratings set forth below:
Rating Category |
S&P |
Xxxxx’x |
Rating I |
greater than or equal to A- |
greater than or equal to A3 |
Rating II |
equal to BBB+ |
equal to Baa1 |
Rating III |
equal to BBB |
equal to Baa2 |
Rating IV |
equal to BBB- |
equal to Baa3 |
Rating V |
less than BBB- |
less than Baa3 |
provided that (i) if on any day the Ratings of the Rating Agencies do not fall in the same Rating Category, and the lower of such Ratings (i.e., the Rating Category designated by a numerically higher Roman numeral) is one Rating Category lower than the higher of such Ratings, then the Rating Category of the higher of such Ratings shall be applicable for such day, (ii) if on any day the Ratings of the Rating Agencies do not fall in the same Rating Category, and the lower of such Ratings is more than one Rating Category lower than the higher of such Ratings, then the Rating Category next lower from that of the higher of such Ratings shall be applicable for such day, (iii) if on any day the Rating of only one of the Rating Agencies is available, then the Rating Category determined by such Rating shall be applicable for such day and (iv) if on any day a Rating is available from neither of the Rating Agencies, then Rating V shall be applicable for such day. Any change in the applicable Rating Category resulting from a change in the Rating of a Rating Agency shall become effective on the date such change is publicly announced by such Rating Agency.
“Receivables”: accounts receivable, lease receivables or other rights to receive payment or income of the Company or any of its Subsidiaries, and accounts receivable purchased by the Company or any of its Subsidiaries from third parties and not originally created by the sale of goods or services by the Company or any of its Subsidiaries.
19
“Receivables Financing”: any financing transaction pursuant to which Receivables are sold, transferred, securitized or otherwise financed by any Receivables Subsidiary and as to which there is no recourse to the Company or any of its other Subsidiaries (other than customary representations and warranties made in connection with the sale or transfer of Receivables).
“Receivables Subsidiary”: any Subsidiary of the Company that purchases Receivables directly or to which Receivables are transferred by the Company or any of its Subsidiaries, in either case with the intention of engaging in a Receivables Financing.
“Recipient”: (i) the Administrative Agent, (ii) any Bank or (iii) any Issuing Lender, as applicable.
“Register”: as defined in subsection 9.6(c).
“Regulation D”: Regulation D of the Federal Reserve Board.
“Regulation U”: Regulation U of the Federal Reserve Board.
“Regulation X”: Regulation X of the Federal Reserve Board.
“Reimbursement Obligation”: the obligation of the Company to reimburse the Issuing Lenders pursuant to subsection 2.22(d) for amounts drawn under Letters of Credit.
“Related Parties”: with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Reportable Event”: any of the events set forth in Section 4043(b) of ERISA, other than those events as to which the thirty day notice period is waived by the PBGC.
“Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law (including Environmental Laws), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Reserve Requirement”: with respect to any Interest Period, the reserve percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) in effect from time to time during such Interest Period, as provided by the Federal Reserve Board, applied for determining the maximum reserve requirements (including basic, supplemental, marginal and emergency reserves) applicable to Citibank under Regulation D with respect to “Eurocurrency liabilities” within the meaning of Regulation D, or under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding.
“Responsible Officer”: the chairman and the chief executive officer of the Company, the chief financial officer of the Company, the senior vice president and treasurer of the Company or the senior vice president and chief accounting officer of the Company.
20
“Revaluation Date”: with respect to any Extension of Credit, each of the following: (i) in connection with the origination of any new Extension of Credit, the Business Day which is the earliest of the date such credit is extended or the date the rate is set; (ii) in connection with any extension or conversion or continuation of an existing Loan, the Business Day that is the earlier of the date such advance is extended, converted or continued, or the date the rate is set, as applicable, in connection with any extension, conversion or continuation; (iii) each date a Letter of Credit is issued or renewed or amended in such a way as to modify the LOC Obligations; (iv) the date of any reduction of the Commitments; and (v) such additional dates as the Administrative Agent or the Majority Banks shall deem necessary. For purposes of determining availability hereunder, the rate of exchange for any Foreign Currency shall be the Spot Rate.
“S&P”: S&P Global Ratings.
“Sanctioned Country”: at any time, a country, region or territory which is itself the subject or target of any comprehensive Sanctions.
“Sanctioned Person”: at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, Her Majesty’s Treasury of the United Kingdom, the European Union or any European Union member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled 50% or more, whether individually or in the aggregate, directly or indirectly, by any such Person or Persons described in the foregoing clauses (a) or (b).
“Sanctions”: economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“SEC”: the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Short-Term Ratings”: with respect to any Person, the short-term debt ratings of such Person issued by the Rating Agencies.
“Significant Subsidiary”: at any date, any Subsidiary of the Company which, together with its Subsidiaries, (i) has a proportionate share of Consolidated Net Assets that exceeds 10% at the time of determination or (ii) has equity in the Consolidated Net Income that exceeds 10% for the period of the four most recently completed fiscal quarters preceding the time of determination.
“Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
“SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
21
“SOFR Administrator” the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“XXXXX”: with respect to any applicable determination date, a rate equal to the Sterling Overnight Index Average as administered by the XXXXX Administrator, published on the fifth Business Day preceding such date on the XXXXX Administrator’s Website (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time); provided however that if such applicable determination date is not a Business Day, XXXXX means such rate that applied on the fifth Business Day preceding on the first Business Day immediately prior thereto. If by 5:00 pm (London time) on the second Business Day immediately following any determination date XXXXX in respect of such day has not been published on the XXXXX Administrator’s Website, then XXXXX will be as published in respect of the first preceding Business Day for which XXXXX was published on the XXXXX Administrator’s Website; provided that XXXXX determined pursuant to this sentence shall be utilized for no more than three consecutive days. If XXXXX is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“XXXXX Xxxxxxxxxx”: 0.0326% per annum.
“XXXXX Administrator”: the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“XXXXX Administrator’s Website”: the Bank of England’s website, currently at xxxx://xxx.xxxxxxxxxxxxx.xx.xx, or any successor source for the Sterling Overnight Index Average identified as such by the XXXXX Administrator from time to time.
“XXXXX Xxxx”: any Loan the rate of interest applicable to which is based upon the Adjusted XXXXX Xxxx.
“Specified Transaction”: any transaction or series of related transactions resulting in (a) the acquisition or disposition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition or disposition of in excess of 50% of the capital stock of any Person or (c) a merger or consolidation or any other combination with another Person (other than the Company or any of its Subsidiaries), in each case, involving consideration in an amount equal to or greater than $500,000,000.
“Spot Rate”: with respect to any Foreign Currency, the rate quoted by Citibank as the spot rate for the purchase by Citibank of such Foreign Currency with Dollars through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made.
“Subsidiary”: as to any Person, a corporation, partnership or other entity (whether or not existing as at the date hereof) of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
22
“Successor Rate”: as defined in subsection 2.11(b).
“Successor Rate Conforming Changes”: as defined in subsection 2.11(b).
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Benchmark Loan”: any Loan the rate of interest applicable to which is based upon the Adjusted Term SOFR Rate or the Adjusted EURIBO Rate.
“Term Benchmark Rate”: (i) with respect to any Loan denominated in Dollars, the Adjusted Term SOFR Rate and (ii) with respect to any Loan denominated in Euros, the Adjusted EURIBO Rate.
“Term SOFR”:
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such ABR SOFR Determination Day.
“Term SOFR Adjustment”: 0.10% per annum.
“Term SOFR Administrator”: CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
23
“Term SOFR Loan”: at any time, any Loan that bears interest at such time at the applicable Adjusted Term SOFR Rate.
“Term SOFR Reference Rate”: the forward-looking term rate based on SOFR.
“Termination Date”: January 8, 2024, subject to the extension thereof pursuant to subsection 2.25; provided, however, that the Termination Date of any Bank that is a Non-Extending Bank to any requested extension pursuant to subsection 2.25 shall be the Termination Date in effect immediately prior to the applicable Extension Date for all purposes of this Agreement.
“Tranche”: the reference to all LIBORTerm Benchmark Loans the Interest Periods of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day); Tranches may be identified as “LIBORTerm Benchmark Tranches.”
“Transferee”: means any Participant or Purchasing Bank.
“Treaty on European Union”: the Treaty of Rome of March 25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed at Maastricht on February 1, 1992 and came into force on November 1, 1993), and as further amended from time to time.
“Type”: as to any Loan, its nature as a Base Rate Loan, a Term Benchmark Loan or a LIBORSONIA Loan.
“U.S. Government Securities Business Day”: any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person”: any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate”: as defined in subsection 2.15(f).
“Withholding Agent”: the Company and the Administrative Agent.
“Write-Down and Conversion Powers”: 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 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the Loan Documents or any certificate or other document made or delivered pursuant hereto.
24
(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Company and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(c) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Sections, subsections, Exhibits and Schedules shall be construed to refer to Sections and subsections of, and Exhibits and Schedules to, this Agreement, (v) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) 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.
(d) All references herein to the Banks or any of them shall be deemed to include the Issuing Lenders unless specifically provided otherwise or unless context otherwise requires.
(e) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
(f) All references to “knowledge” or “awareness” of the Company or any Subsidiary are to the actual knowledge of a senior officer of the Company or such Subsidiary.
1.3 Accounting Terms. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, and all accounting determinations hereunder shall be made, in
25
accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of the Company delivered to the Banks; provided that if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in this Agreement, and the Company, the Majority Banks or the Administrative Agent shall so request, the Administrative Agent, the Banks and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Banks); provided further that until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding anything to the contrary in the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, the effects of Accounting Standards Codification 842 on capital lease or debt obligations shall be disregarded.
1.4 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating the Dollar Amounts of Extensions of Credit and amounts outstanding hereunder denominated in Foreign Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Company hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency for purposes of the Loan Documents shall be such Dollar Amount as so determined by the Administrative Agent.
(b) Wherever in this Agreement in connection with an Extension of Credit, conversion, continuation or prepayment of a Loan, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Extension of Credit or Loan is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar Amount (rounded upwards to the nearest 1,000 units of such Foreign Currency), as determined by the Administrative Agent.
1.5 Computation of Dollar Amounts. References herein to minimum Dollar Amounts and integral multiples stated in Dollars, where they shall also be applicable to Foreign Currency, shall be deemed to refer to approximate Foreign Currency Equivalents.
1.6 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
26
SECTION 2
2.1 Commitments.
(a) Subject to the terms and conditions hereof, each Bank severally agrees to make revolving credit loans (each, a “Loan”; collectively, the “Loans”) in Dollars and in Foreign Currencies to the Company from time to time during the Commitment Period applicable to such Bank in an aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) at any one time outstanding that, when added to the amount of such Bank’s Commitment Percentage of the aggregate principal amount of all LOC Obligations then outstanding, shall not exceed the amount of such Bank’s Commitment; provided that (i) after giving effect to the use of proceeds of Loans to repay any LOC Obligations, the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of Loans and LOC Obligations outstanding at any one time shall not exceed the aggregate amount of the Commitments at such time; and (ii) the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of Loans that are Foreign Currency Loans outstanding to the Company shall not exceed $250,000,000. During the Commitment Period the Company may use the Commitments by borrowing, prepaying the Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Loans may from time to time be (i) LIBORTerm Benchmark Loans, (ii) Base Rate Loans, or (iii) XXXXX Loans, or (iv) a combination thereof, as determined by the Company and notified to the Administrative Agent in accordance with subsections 2.3 and 2.7; provided that (1) no Loan shall be made as a LIBORTerm Benchmark Loan after the day that is one month prior to the final Termination Date and, (2) all Foreign Currency Loans must be LIBORLoans denominated in Euro must be Term Benchmark Loans and (3) all Loans denominated in British Pound Sterling must be XXXXX Loans.
2.2 Notes. The Loans made by each Bank shall, if requested by such Bank, be evidenced by a promissory note of the Company, substantially in the form of Exhibit A with appropriate insertions as to payee, date and principal amount (a “Note”), payable to such Bank or its registered assigns and in a principal Dollar Amount equal to such Bank’s Commitment. Each Bank is hereby authorized to record the date, Type, currency and amount of each Loan made by such Bank, each continuation thereof, each conversion of all or a portion thereof to another Type, the date and amount of each payment or prepayment of principal thereof and, in the case of LIBORTerm Benchmark Loans, the length of each Interest Period with respect thereto, on the schedule annexed to and constituting a part of its Note, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided that the failure of any Bank to make any such recordation (or any error in such recordation) shall not affect the obligations of the Company hereunder or under any Note in respect of the Loans. Each Note shall (i) be dated the Closing Date, (ii) be stated to mature on the Termination Date (as the same may be extended as to any Bank in accordance with subsection 2.25) and (iii) provide for the payment of interest in accordance with subsection 2.9.
27
2.3 Procedure for Borrowing.
(a) The Company may borrow under the Commitments during the Commitment Period on any Business Day; provided that the Company shall deliver to the Administrative Agent a Borrowing Certificate, which certificate to be effective on the requested Borrowing Date must be received by the Administrative Agent (ai) prior to 12:00 noon three U.S. Government Securities Business Days prior to the requested Borrowing Date, if all or any part of the requested Loans are to be initially LIBORTerm SOFR Loans (other than Foreign Currency Loans), (bii) prior to 10:00 a.m. (London, England time) four Business Days prior to the requested Borrowing Date, if all or any part of the requested Loans are to be Foreign Currency Loans or (eiii) prior to 12:30 p.m. on the requested Borrowing Date, otherwise, in each case specifying (i1) the amount to be borrowed, (ii2) the currency to be borrowed, (iii3) the requested Borrowing Date, (iv4) whether the borrowing is to be of LIBORTerm Benchmark Loans, Base Rate Loans, XXXXX Loans or a combination thereof (if the borrowing is to be denominated in a Foreign CurrencyEuro, the borrowing must be comprised entirely of LIBOREURIBOR Loans and if the borrowing is to be denominated in British Pound Sterling, the borrowing must be comprised entirely of XXXXX Loans) and (v5) if the borrowing is to be entirely or partly of LIBORTerm Benchmark Loans, the aggregate amount of such LIBORTerm Benchmark Loans and the amounts of each such LIBORTerm Benchmark Loan and the respective length of the initial Interest Period therefor. Each borrowing under the Commitments shall be in a Dollar Amount equal to (x) in the case of Base Rate Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then Available Commitments are less than $5,000,000, such lesser amount) or (y) in the case of LIBORTerm Benchmark Loans or XXXXX Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of a Borrowing Certificate, the Administrative Agent shall promptly notify each Bank thereof.
(b) Each Bank will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Company at the applicable office of the Administrative Agent specified in subsection 9.2 or such other office specified by the Administrative Agent from time to time prior to (i) 2:30 p.m. in the case of Base Rate Loans or 12:00 noon in the case of LIBORTerm Benchmark Loans denominated in Dollars or (ii) the Applicable Time specified by the Administrative Agent in the case of any Foreign Currency Loan, in each case on the Borrowing Date requested by the Company in Dollars or the applicable Foreign Currency and in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Company by the Administrative Agent crediting the account of the Company on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Banks and in like funds as received by the Administrative Agent.
2.4 Fees.
(a) The Company agrees to pay to the Administrative Agent, for the account of each Bank, a facility fee for the period from and including the Closing Date through and including the Termination Date applicable to such Bank, calculated as an amount equal to the product of (i) the Facility Fee Rate and (ii) the average daily amount of the Commitment of such Bank (regardless of usage) during the period for which such facility fee is
28
calculated, payable in arrears on the last day of each December, March, June and September (for the quarterly period ended on such date) and on the Termination Date applicable to such Bank or such earlier date on which the Commitments shall terminate as provided herein (for the period from the last quarterly payment date to the applicable Termination Date or such other date, as applicable). Such payments shall commence on December 31, 2018, and such first payment shall be for the period from the Closing Date through December 31, 2018.
(b) The Company agrees to pay to the Administrative Agent, the Syndication Agents and the Lead Arrangers for their own account, as the case may be, the fees in the respective amounts and at the respective times set forth in the Fee Letters.
(c) In consideration of the LOC Commitments, the Company agrees to pay to the Administrative Agent a fee (the “Letter of Credit Fee”) equal to the Applicable Margin for LIBORTerm Benchmark Loans per annum on the average daily maximum amount available to be drawn under each Letter of Credit from the date of issuance to the date of expiration. The Letter of Credit Fee shall be payable for the ratable benefit of each Bank (including the Issuing Lenders) quarterly in arrears on the last day of each December, March, June and September (for the quarterly period ended on such date) and on the Termination Date applicable to such Bank. Such payments shall commence on March 31, 2019, and such first payment shall be for the period from the Closing Date through March 31, 2019.
(d) In addition to the Letter of Credit Fees payable pursuant to subsection 2.4(c), the Company shall pay to each Issuing Lender for its own account without sharing by the other Banks the reasonable and customary charges from time to time of such Issuing Lender with respect to the amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the “Issuing Lender Fees”). Each Issuing Lender may charge, and retain for its own account without sharing by the other Banks, an additional facing fee (the “Letter of Credit Facing Fee”) in the amount per annum specified in its Fee Letter with the Company on the average daily maximum amount available to be drawn under each such Letter of Credit issued by it. The Letter of Credit Facing Fee shall be payable for the account of the applicable Issuing Lender quarterly in arrears on the last day of each December, March, June and September (for the quarterly period ended on such date), on the Termination Date applicable to such Issuing Lender and thereafter on demand until all Letters of Credit issued by such Issuing Lender have been canceled or terminated.
2.5 Termination or Reduction of Commitments. The Company shall have the right, upon not less than five Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments; provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of the Loans made on the effective date thereof, the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of the Loans and LOC Obligations then outstanding would exceed the Commitments then in effect; provided further that a notice of termination of the Commitments delivered by the Company may state that such notice is conditioned upon the effectiveness of other credit facilities or the receipt of proceeds from the
29
issuance of other Indebtedness, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. Any reduction of the Commitments made in accordance with this subsection 2.5 shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof, shall be applied to the Commitment of each Bank according to its Commitment Percentage and shall reduce permanently the Commitments then in effect.
2.6 Prepayments.
(a) Subject to subsection 2.16, the Company may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice to the Administrative Agent given prior to 10:00 a.m. at least three U.S. Government Securities Business Days in advance in the case of LIBORTerm SOFR Loans, at least three Business Days in advance in the case of EURIBOR Loans and XXXXX Xxxxx and on the requested prepayment date in the case of Base Rate Loans, specifying the date and amount of prepayment and whether the prepayment is of LIBORTerm Benchmark Loans (identifying the applicable Tranche or Tranches), Base Rate Loans, XXXXX Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) If at any time after the Closing Date, (i) the sum of the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of outstanding Loans and LOC Obligations shall exceed the aggregate amount of the Commitments at such time or (ii) the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of Loans that are Foreign Currency Loans outstanding to the Company exceeds $250,000,000, then, in each case, the Loans shall be prepaid in an amount sufficient to eliminate such excess within one Business Day following the Company’s receipt of notice thereof.
(c) No prepayment under this subsection 2.6 shall result in the reduction of any Commitments unless otherwise effected pursuant to subsection 2.5.
2.7 Conversion and Continuation Options.
(a) The Company may elect from time to time to convert Loans that are LIBORTerm SOFR Loans denominated in Dollars to Base Rate Loans, by giving the Administrative Agent at least two U.S. Government Securities Business Days’ prior irrevocable notice of such election; provided that any such conversion of LIBORTerm SOFR Loans may only be made on the last day of an Interest Period with respect thereto. The Company may elect from time to time to convert Base Rate Loans to LIBORTerm SOFR Loans denominated in Dollars by giving the Administrative Agent at least three U.S. Government Securities Business Days’ prior irrevocable notice of such election. Any such
30
notice of conversion to LIBORTerm SOFR Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof. All or any part of outstanding LIBORTerm SOFR Loans denominated in Dollars and Base Rate Loans may be converted as provided herein; provided that (i) no Loan may be converted into a LIBORTerm SOFR Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Banks have determined to not permit such a conversion; (ii) any such conversion may only be made if, after giving effect thereto, subsection 2.8 shall not have been contravened; and (iii) no Loan may be converted into a LIBORTerm SOFR Loan after the date that is one month prior to the final Termination Date.
(b) Any Loans that are LIBORTerm Benchmark Loans may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Company giving at least three Business Days’ prior irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in subsection 1.1, of the length of the next Interest Period to be applicable to such Loans; provided that no LIBORTerm Benchmark Loan may be continued as such (i) when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Banks have determined to not permit such a continuation; (ii) if, after giving effect thereto, subsection 2.8 would be contravened; or (iii) after the date that is one month prior to the final Termination Date. Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof.
(c) Unless otherwise agreed to by the Majority Banks, upon the occurrence and during the continuance of any Event of Default, all Foreign Currency Loans then outstanding shall be exchanged into Dollars (based on the Dollar Amount (determined as of the most recent Revaluation Date) of such Foreign Currency Loans on the date of redenomination) on the last day of the then current Interest Periods of such Foreign Currency Loans (if such Loans are EURIBOR Loans) or immediately (if such Loans are XXXXX Loans); provided that in each case the Company shall be liable for any currency exchange loss related to such payments and shall promptly pay to each Bank upon receipt of notice thereof by the Company from such Bank the amount of any such loss incurred by such Bank.
2.8 Minimum Amounts of Tranches. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Loans comprising each LIBORTerm Benchmark Tranche shall be equal to a Dollar Amount (determined as of the most recent Revaluation Date) of at least $5,000,000 and, solely with respect to Loans denominated in Dollars, in a whole multiple of $1,000,000.
2.9 Interest Rates and Payment Dates.
(a) Each Base Rate Loan shall bear interest at a rate per annum equal to the Adjusted Base Rate.
31
(b) (i) Each Loan that is a LIBORTerm SOFR Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Adjusted LIBORTerm SOFR Rate for such Interest Period.;
(ii) Each Loan that is a EURIBOR Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Adjusted EURIBO Rate for such Interest Period; and
(iii) Each Loan that is a XXXXX Loan shall bear interest at a rate per annum equal to the Adjusted XXXXX Xxxx.
(c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto plus 2%; and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any fee or other amount payable hereunder or under any Note or Fee Letter shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the Adjusted Base Rate plus 2%; in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full (as well after as before judgment).
(d) Interest on each Loan shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to subsection 2.9(c) shall be payable on demand.
(e) Nothing contained in this Agreement or in any other Loan Document shall be deemed to establish or require the payment of interest to any Bank at a rate in excess of the maximum rate permitted by applicable law. If the amount of interest payable for the account of any Bank on any interest payment date would exceed the maximum amount permitted by applicable law to be charged by such Bank, the amount of interest payable for its account on such interest payment date shall be automatically reduced to such maximum permissible amount. In the event of any such reduction affecting any Bank, if from time to time thereafter the amount of interest payable for the account of such Bank on any interest payment date would be less than the maximum amount permitted by applicable law to be charged by such Bank, then the amount of interest payable for its account on such subsequent interest payment date shall be automatically increased to such maximum permissible amount; provided that at no time shall the aggregate amount by which interest paid for the account of any Bank has been increased pursuant to this sentence exceed the aggregate amount by which interest paid for its account has theretofore been reduced pursuant to the previous sentence.
2.10 Computation of Interest and Fees.
(a) Interest on Base Rate Loans (whenever it is calculated on the basis of Citibank’s base rate) and interest on Foreign Currency Loans denominated in Pounds Sterling shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for
32
the actual days elapsed; otherwise, interest and fees shall be calculated on the basis of a 360-day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the Banks of each determination of a LIBORTerm Benchmark Rate and of the effective date and the amount of each such change in interest rate; provided, however, that the failure of the Administrative Agent to provide the Company or the Banks with any such notice shall neither affect any obligations of the Company or the Banks hereunder nor result in any liability on the part of the Administrative Agent to the Company or any Bank.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement (including each determination of the Reserve Requirement) shall be conclusive and binding on the Company and the Banks in the absence of demonstrable error. The Administrative Agent shall, at the request of the Company, deliver to the Company a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to subsection 2.9(a) or 2.9(b).
2.11 Inability to Determine Interest Rate. (a) In the event that prior to the first day of any Interest Period, prior to the borrowing of any XXXXX Xxxxx or at any time that XXXXX Xxxxx are outstanding:
(i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Company) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBORTerm Benchmark Rate for such Interest Period or XXXXX, or
(ii) the Administrative Agent shall have received notice from the Majority Banks that the LIBORTerm Benchmark Rate determined or to be determined for such Interest Period, or XXXXX, as applicable, will not adequately and fairly reflect the cost to such Banks (as conclusively certified by such Xxxxx) of making or maintaining their affected Loans during such Interest Period,
then the Administrative Agent shall give telecopy or telephonic (confirmed in writing) notice thereof to the Company and the Banks as soon as practicable thereafter. If such notice is given (wv) all affected Foreign Currency Loans requested to be made on the first day of such Interest Period shall be made, at the sole option of the Company, in Dollars as Base Rate Loans or such request shall be cancelled, (xw) all LIBORTerm SOFR Loans denominated in Dollars requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (yx) all Loans that were to have been converted on the first day of such Interest Period to LIBORTerm SOFR Loans shall be converted to or continued as Base Rate Loans in Dollars and, (zy) all Loans that pursuant to subsection 2.7(b) were to have been continued on the first day of such Interest Period as LIBORTerm Benchmark Loans shall be converted to Base Rate Loans in Dollars and (z) all XXXXX Loans shall bear interest at the Central Bank Rate plus the Applicable Margin applicable to XXXXX Loans. Until such notice has been withdrawn by the Administrative Agent or the Majority Banks, as the case may be, no further LIBORTerm Benchmark Loans or XXXXX Loans shall be made or continued as such, nor shall the Company have the right to convert Loans to LIBORTerm SOFR Loans.
33
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Majority Banks notify the Administrative Agent (with a copy to the Company) that the Majority Banks have determined, that:
(i) adequate and reasonable means do not exist for ascertaining the LIBOR RateTerm SOFR Reference Rate, EURIBOR Rate, or XXXXX, as applicable, for any requested Interest Period, including, without limitation, because the LIBOR Ratesuch rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) the supervisor for the administrator of the LIBORTerm SOFR Reference Rate, EURIBOR Rate or XXXXX, as applicable, or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Ratesuch rate shall no longer be made available, or used for determining the interest rate of loans,
then, after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Company may amend this Agreement to replace the LIBOR RateTerm SOFR Reference Rate, EURIBOR Rate or XXXXX, as applicable, with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in the United States of America in lieu of the LIBORTerm SOFR Reference Rate, EURIBOR Rate or XXXXX, as applicable (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (as defined below) and, notwithstanding anything to the contrary in Section 9.1, any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Banks and the Company unless, prior to such time, Banks comprising the Majority Banks have delivered to the Administrative Agent notice that such Majority Banks do not accept such amendment.
If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist, the obligation of the Banks to make or maintain LIBOR Loans bearing interest at the applicable rate shall be suspended (to the extent of the affected LIBOR Loans or Interest Periods). Upon receipt of such notice, (w) all affected Foreign Currency Loans requested to be made on the first day of such Interest Period shall be made, at the sole option of the Company, as Base Rate Loans or such request shall be cancelled, (x) all LIBORTerm Benchmark Loans denominated in Dollars requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) all Loans that were to have been converted on the first day of such Interest Period to LIBORTerm Benchmark Loans shall be converted to or continued as Base Rate Loans in Dollars and (z) all Loans that pursuant to subsection 2.7(b) were to have been continued on the first day of such Interest Period as LIBORTerm Benchmark Loans shall be converted to Base Rate Loans in Dollars. Until such notice has been withdrawn by the Administrative Agent or the Majority Banks, as the case may be, no further LIBORTerm Benchmark Loans shall be made or continued as such, nor shall the Company have the right to convert Loans to LIBORTerm Benchmark Loans.
34
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definitions of Base Rate, Adjusted Base Rate, Adjusted LIBOR Rate,SOFR, Term SOFR Reference Rate, Adjusted Term SOFR Rate, EURIBOR Rate, Adjusted EURIBOR Rate, XXXXX, Adjusted XXXXX Xxxx and Interest Period and LIBOR Rate and any defined terms used therein, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the reasonable discretion of the Administrative Agent in consultation with the Company, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Company).
2.12 Pro Rata Treatment and Payments.
(a) Each borrowing of Loans and any reduction of the Commitments shall be made pro rata according to the respective Commitment Percentages of the Banks (except as otherwise provided in subsection 2.25). Unless otherwise required by the terms of this Agreement, each payment under this Agreement or any other Loan Documents shall be applied, first, to any fees then due and owing by the Company pursuant to subsection 2.4, second, to interest then due and owing in respect of the Loans of the Company, third, to principal then due and owing hereunder and under the Notes of the Company, and, fourth, to any other amounts then due and owing under the Loan Documents. Each payment on account of any fees pursuant to subsection 2.4 for the account of Banks shall be made pro rata in accordance with the respective amounts due and owing (except as to the Letter of Credit Facing Fee and the Issuing Lender Fees). Each payment by the Company on account of principal of and interest on the Loans shall be made pro rata according to the respective amounts due and owing. Without limiting the terms of the preceding sentence, accrued interest on any Loans denominated in a Foreign Currency shall be payable in the same Foreign Currency as such Loan. Payments made pursuant to subsection 2.13 shall be applied in accordance with such section. All payments (including prepayments) to be made by the Company on account of principal, interest and fees shall be made without defense, set-off or counterclaim (except as provided in subsection 2.15) and shall be made to the Administrative Agent for the account of the applicable Banks at the Administrative Agent’s office specified in subsection 9.2 or such other office specified by the Administrative Agent in immediately available funds and (i) in the case of Loans or other amounts denominated in Dollars, shall be made in Dollars not later than 12:00 noon on the date when due and (ii) in the case of Loans or other amounts denominated in a Foreign Currency, unless otherwise specified herein, shall be made in such Foreign Currency not later than the Applicable Time specified by the Administrative Agent on the date when due. Any payment received after the foregoing deadlines shall be deemed received on the next Business Day. The Administrative Agent shall distribute such payments to the Banks entitled thereto promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension; provided,
35
however, that with respect to any LIBORTerm Benchmark Loan to which clause (A) of the definition of “Interest Period” applies, such payment shall be the next preceding Business Day.
(b) Notwithstanding any other provisions of this Agreement to the contrary, after the exercise of remedies by the Administrative Agent or the Banks pursuant to Section 7 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Loan Documents (including the maximum amount of all contingent liabilities under Letters of Credit) shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Bank on account of the Obligations or any other amounts outstanding under any of the Loan Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the Administrative Agent in connection with enforcing the rights of the Banks under the Loan Documents;
SECOND, to the payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of each of the Banks in connection with enforcing its rights under the Loan Documents or otherwise with respect to the Obligations owing to such Bank;
FOURTH, to the payment of all of the Obligations consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the Obligations and the payment or Cash Collateralization of the outstanding LOC Obligations;
SIXTH, to all other Obligations and other obligations which shall have become due and payable under the Loan Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; (ii) each of the Banks shall receive an amount equal to its pro rata share (based on such Bank’s proportion of the amount owing under such clause) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent that any amounts available for distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (A) first, to reimburse the Issuing Lenders from time to time for any drawings under such Letters of Credit and (B) then, following the expiration of all Letters of Credit, to all other
36
obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner provided in this subsection 2.12(b).
(c) Unless the Administrative Agent shall have received notice from a Bank, prior to the proposed time of any borrowing, that such Bank will not make available to the Administrative Agent such Bank’s share of such borrowing, the Administrative Agent may assume that such Bank has made such share available on such date in accordance with subsection 2.3(b) and may, in reliance upon such assumption, make available to the Company a corresponding amount. In such event, if a Bank has not in fact made its share of the applicable borrowing available to the Administrative Agent, then the applicable Bank and the Company severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Company to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Bank, the greater of the Federal Funds 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 Company, the interest rate applicable to Base Rate Loans. If the Company and such Bank shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Company the amount of such interest paid by the Company for such period. If such Bank pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid shall constitute such Bank’s Loan included in such borrowing. Any payment by the Company shall be without prejudice to any claim the Company may have against a Bank that shall have failed to make such payment to the Administrative Agent.
(d) Unless the Administrative Agent shall have received notice from the Company prior to the date on which any payment is due to the Administrative Agent for the account of the Bank or the Issuing Lenders hereunder that the Company will not make such payment, the Administrative Agent may assume that the Company has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Banks or the Issuing Lenders, as the case may be, the amount due. In such event, if the Company has not in fact made such payment, then each of the Banks or the Issuing Lenders, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Bank or 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
2.13 Illegality.
(a) Notwithstanding any other provision herein, if any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Bank to make or maintain LIBORTerm Benchmark Loans or XXXXX Xxxxx as contemplated by this Agreement, such Bank shall forthwith so notify the Administrative Agent and the Company. Upon such notice, (i) the commitment of such Bank hereunder to make LIBORTerm Benchmark Loans or XXXXX Xxxxx, continue LIBORTerm
37
Benchmark Loans as such and convert Base Rate Loans to LIBORTerm SOFR Loans shall forthwith be cancelled and (ii) such Bank’s Loans then outstanding as LIBORTerm Benchmark Loans or XXXXX, if any, shall be converted automatically to Base Rate Loans denominated in Dollars on the respective last days of the then current Interest Periods with respect to such Term Benchmark Loans or within such earlier period as required by law or, in the case of XXXXX Xxxxx, as required by law. If any such conversion of a LIBORTerm Benchmark Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Company shall pay to such Bank such amounts, if any, as may be required pursuant to subsection 2.16.
(b) Notwithstanding any other provision herein, if there shall have occurred any change in national or international financial, political or economic conditions (including the imposition of or any change in exchange controls) or currency exchange rates that would make it unlawful or impossible for any Bank to make Loans denominated in any Foreign Currency to the Company, as contemplated by this Agreement, such Bank shall forthwith so notify the Administrative Agent and the Company. Upon such notice, (i) the commitment of such Bank hereunder to make Foreign Currency Loans shall forthwith be cancelled and (ii) such Bank’s Loans then outstanding as Foreign Currency Loans, if any, shall be converted automatically to Base Rate Loans denominated in Dollars. If any conversion of a Foreign Currency Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Company shall pay to such Bank such amounts, if any, as may be required pursuant to subsection 2.16.
2.14 Requirements of Law.
(a) 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 Bank (except any reserve requirement reflected in the Adjusted LIBOREURIBO Rate) or any Issuing Lender;
(ii) subject any Recipient to any Taxes (other than Connection Income Taxes, Indemnified Taxes and Taxes described in any of clauses (i) through (iv) of the definition of Excluded 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 Bank or any Issuing Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Bank or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Bank 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 Bank,
38
such Issuing Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Bank, Issuing Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Bank, Issuing Lender or other Recipient, setting forth the calculations thereof in reasonable detail, the Company will pay to such Bank, Issuing Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Bank, Issuing Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Bank or Issuing Lender determines that any Change in Law affecting such Bank or Issuing Lender or any lending office of such Bank or such Bank’s or Issuing Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Bank’s or Issuing Lender’s capital or on the capital of such Bank’s or Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Bank or the Loans made by, or participations in Letters of Credit held by, such Bank, or the Letters of Credit issued by such Issuing Lender, to a level below that which such Bank or Issuing Lender or such Bank’s or Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Bank’s or Issuing Lender’s policies and the policies of such Bank’s or Issuing Lender’s holding company with respect to capital adequacy), then from time to time the Company will pay to such Bank or Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Bank or Issuing Lender or such Bank’s or Issuing Lender’s holding company for any such reduction suffered.
(c) A certificate of a Bank or Issuing Lender setting forth in reasonable detail the calculations of the amount or amounts necessary to compensate such Bank or Issuing Lender or its holding company, as the case may be, as specified in subsection 2.14(a) or 2.14(b) and delivered to the Company, shall be conclusive absent demonstrable error. The Company shall pay such Bank or Issuing Lender, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Bank or Issuing Lender to demand compensation pursuant to this subsection 2.14 shall not constitute a waiver of such Bank’s or Issuing Lender’s right to demand such compensation; provided that the Company shall not be required to compensate a Bank or Issuing Lender pursuant to this subsection 2.14 for any increased costs, requirements, Taxes or expenses incurred or reductions suffered more than six months prior to the date that such Bank or Issuing Lender, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions, and of such Bank’s or 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-month period referred to above shall be extended to include the period of retroactive effect thereof).
39
2.15 Taxes.
(a) Any and all payments by or on account of any obligation of the Company under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Company 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 subsection 2.15) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) The Company shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) The Company shall indemnify each Recipient, within 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 subsection 2.15) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that the Company shall not be required to indemnify a Recipient for such Taxes or expenses resulting from the gross negligence, willful misconduct or breach in bad faith of such Recipient, including as a result of a failure by the Administrative Agent to remit to the appropriate Governmental Authority any amounts paid over by the Company pursuant to this subsection 2.15. A certificate as to the amount of such payment or liability delivered to the Company by a Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Bank, shall be conclusive absent demonstrable error.
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Bank (but only to the extent that the Company has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Company to do so), (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of subsection 9.6(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent demonstrable error. Each Bank authorizes
40
the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to the Bank from any other source against any amount due to the Administrative Agent under this subsection 2.15(d).
(e) As soon as practicable after any payment of Taxes by the Company to a Governmental Authority pursuant to this subsection 2.15, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(f) (i) Any Bank, which for purposes of this Section 2.15(f) includes any Recipient, 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 Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Bank 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 this subsection 2.15(f)(ii)(A), 2.15(f)(ii)(B) or 2.15(f)(ii)(D)) shall not be required if in the Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank.
(ii) So long as the Company is a U.S. Person:
(A) any Bank that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Bank 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 Company 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 Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable:
41
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States of America is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E 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 or W-8BEN-E 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;
(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E; or
(4) 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 or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 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 Company 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 Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company 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 Company or the Administrative Agent to determine the withholding or deduction required to be made; and
42
(D) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank 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 Bank shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company 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 Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this subsection 2.15(f)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Bank 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 Company and the Administrative Agent in writing of its legal inability to do so.
(g) If any party determines, in its sole discretion exercised in good faith, that it has received a refund (including, for the avoidance of doubt, benefits received solely in lieu of receiving a cash refund) of any Taxes as to which it has been indemnified pursuant to subsection 2.14(a)(ii) or this subsection 2.15 (including by the payment of additional amounts pursuant to this subsection 2.15), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under subsection 2.14(a)(ii) or this subsection 2.15 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection 2.15(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection 2.15(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection 2.15(g) 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 Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts in respect of such Tax had never been paid. This subsection 2.15(g) 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.
(h) Each party’s obligations under this subsection 2.15 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or
43
the replacement of, a Bank, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. For purposes of this Section 2.15, the term “applicable law” includes FATCA.
2.16 Indemnity. The Company agrees to indemnify each Bank and to hold each Bank harmless from any loss or expense that such Bank may sustain or incur as a consequence of (i) default by the Company in payment when due of the principal amount of or interest on any LIBORTerm Benchmark Loan, (ii) default by the Company in making a borrowing of, conversion into or continuation of LIBORTerm Benchmark Loans after the Company has given a notice requesting the same in accordance with the provisions of this Agreement, (iii) default by the Company in making any prepayment of LIBORTerm Benchmark Loans after the Company has given a notice thereof in accordance with the provisions of this Agreement or (iv) the making of a prepayment or conversion, or the purchase pursuant to subsection 2.17, of LIBORTerm Benchmark Loans on a day which is not the last day of an Interest Period with respect thereto, including, in each case, any such loss (other than non-receipt of the Applicable Margin or, without duplication, anticipated profits) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate the deposits from which such funds were obtained (it being understood that any such calculation will be made on notional amounts as the Banks are not required to show that they matched deposits specifically). A certificate as to any additional amounts payable pursuant to this subsection submitted by such Bank, through the Administrative Agent, to the Company in good faith shall be conclusive in the absence of demonstrable error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
2.17 Action of Affected Banks.
(a) If any Bank provides a notice under subsection 2.13, requests compensation under subsection 2.14, or requires the Company to pay any Indemnified Taxes or additional amounts to any Bank or any Governmental Authority for the account of any Bank pursuant to subsection 2.15, then such Bank shall (at the request of the Company) 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 Bank, such designation or assignment (i) would eliminate the illegality that gave rise to the notice under subsection 2.13 or would eliminate or reduce amounts payable pursuant to subsection 2.14 or 2.15, as the case may be, in the future, and (ii) would not subject such Bank to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Bank. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Bank in connection with any such designation or assignment.
(b) If any Bank provides a notice under subsection 2.13, requests compensation under subsection 2.14, or if the Company is required to pay any Indemnified Taxes or additional amounts to any Bank or any Governmental Authority for the account of any Bank pursuant to subsection 2.15 and, in each case, such Bank has declined or is unable to designate a different lending office in accordance with subsection 2.17(a), or if any Bank is a Defaulting Bank or a Non-Consenting Bank, then the Company may, at its sole expense, upon notice to such Bank and the Administrative Agent, require such Bank to
44
assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, subsection 9.6), all of its interests, rights (other than its existing rights to payments pursuant to subsection 2.14 or 2.15) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Bank, if a Bank accepts such assignment); provided that:
(i) the Company shall have paid to the Administrative Agent the assignment fee (if any) specified in subsection 9.6;
(ii) such Bank shall have received payment of an amount equal to the outstanding principal of its Loans and funded participations in LOC Obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under subsection 2.16) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under subsection 2.14 or payments required to be made pursuant to subsection 2.15, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) such assignment does not conflict with applicable law; and
(v) in the case of any assignment resulting from a Bank becoming a Non-Consenting Bank, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Bank shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Bank or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
2.18 [Reserved].
2.19 [Reserved].
2.20 Increase of Commitments.
(a) At the request of the Company to the Administrative Agent, the aggregate Commitments hereunder may be increased after the Closing Date on one or more occasions by not more than $750,000,000; provided that (i) each such increase is in a minimum amount of $25,000,000 or $10,000,000 increments in excess thereof, (ii) the sum of the aggregate Commitments hereunder shall not exceed $2,250,000,000 after giving effect to such increases, (iii) the Commitment of any Bank may not be increased without its consent, (iv) the consent of the Administrative Agent and each Issuing Lender that has an outstanding Letter of Credit is obtained (which consent shall not be unreasonably withheld, conditioned or delayed), (v) no Default or Event of Default shall have occurred and be continuing on and as of the date of each such increase or after giving effect thereto, and
45
(vi) each of the representations and warranties made on the Closing Date are true and correct in all material respects (except (x) to the extent such representations and warranties expressly relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date and (y) to the extent such representations and warranties are qualified by materiality in the text thereof, in which case such representations and warranties shall be true and correct) on and as of the date of each such increase.
(b) In the event that the Company and one or more of the Banks (or other financial institutions that may elect to participate with the consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed)) shall agree, in accordance with subsection 2.20(a), upon such an increase in the aggregate Commitments, the Company, the Administrative Agent and each financial institution in question shall enter into a Commitment Increase Supplement (a form of which is attached hereto as Exhibit F) setting forth the amounts of the increase in Commitments and providing that the additional financial institutions participating shall be deemed to be included as Banks for all purposes of this Agreement. Upon the execution and delivery of such Commitment Increase Supplement as provided above, and upon the satisfaction of such other conditions as the Administrative Agent may reasonably specify (including the delivery of certificates and legal opinions on behalf of the Company relating to the amendment and new Notes), this Agreement shall be deemed to be amended accordingly.
(c) No Bank shall have any obligation to increase its Commitment in the event of such a request by the Company hereunder.
2.21 Payment in Full at Maturity. The Company shall pay to the Administrative Agent, for the account of each Bank, the entire outstanding principal amount owing to such Bank under this Agreement or under any other Loan Documents, together with accrued but unpaid interest thereon and all other sums owing to such Bank under this Agreement, on the Termination Date applicable to such Bank unless accelerated sooner pursuant to Section 7.
2.22 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions that the Issuing Lenders may reasonably require, during the Commitment Period the Issuing Lenders may at their sole discretion issue, and the Banks shall participate in, Letters of Credit for the account of the Company from time to time upon request in a form acceptable to the applicable Issuing Lender; provided, however, that (i) the aggregate amount of LOC Obligations shall not at any time exceed $250,000,000; (ii) the Dollar Amount (determined as of the most recent Revaluation Date) of outstanding Loans plus outstanding LOC Obligations shall not exceed the aggregate amount of the Commitments at such time; (iii) Letters of Credit shall be issued for lawful corporate purposes and may be issued as standby letters of credit; and (iv) all Letters of Credit shall be denominated in Dollars or a Foreign Currency. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any LOC Document, the terms and conditions of this Agreement shall control. Except as otherwise expressly agreed upon by all the Banks, no Letter of
46
Credit shall have an original expiry date more than 12 months from the date of issuance; provided, however, that subject to the other terms and conditions to the issuance of Letters of Credit hereunder, the expiry dates of Letters of Credit may be extended annually or periodically from time to time on the request of the Company or by operation of the terms of the applicable Letter of Credit to a date not more than 12 months from the date of extension; provided further that (x) no Letter of Credit, as originally issued or as extended, shall have an expiry date extending beyond the date that is 30 days prior to the final Termination Date and (y) no Letter of Credit may expire after the Termination Date of any Non-Extending Bank if, after giving effect to such issuance or renewal, the aggregate Commitments of the Consenting Banks (including any replacement Banks) for the period following such Termination Date would be less than the LOC Obligations for Letters of Credit expiring after such Termination Date. Each Letter of Credit shall comply with the related LOC Documents. The issuance and expiry date of each Letter of Credit shall be a Business Day. Any Letters of Credit issued hereunder shall be in a minimum original face amount of $50,000.
(b) Notice and Reports. The request for the issuance of a Letter of Credit shall be submitted to the applicable Issuing Lender at least five Business Days prior to the requested date of issuance. Each Issuing Lender will promptly, upon the issuance, amendment or expiration of any Letter of Credit, or upon request, provide to the Administrative Agent for dissemination to the Banks a detailed report specifying the Letters of Credit that are then issued and outstanding and any activity with respect thereto that shall have occurred since the date of any prior report, and including therein, among other things, the account party, the beneficiary, the face amount and the expiry date of each such Letter of Credit as well as any payments or expirations that shall have occurred with respect thereto. Each Issuing Lender will further provide to the Administrative Agent promptly upon request copies of the Letters of Credit. Each Issuing Lender will provide to the Administrative Agent promptly upon request a summary report of the nature and extent of LOC Obligations then outstanding.
(c) Participations. Each Bank, upon issuance of a Letter of Credit, shall be deemed to have purchased without recourse a risk participation from the applicable Issuing Lender in such Letter of Credit and the obligations arising thereunder and any collateral relating thereto, in each case in an amount equal to its Commitment Percentage of the obligations under such Letter of Credit (a “Participation Interest”), and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the applicable Issuing Lender therefor and discharge when due, its Commitment Percentage of the obligations arising under such Letter of Credit. Without limiting the scope and nature of each Bank’s participation in any Letter of Credit, to the extent that an Issuing Lender has not been reimbursed as required hereunder or under any LOC Document, each such Bank shall pay to such Issuing Lender its Commitment Percentage of such unreimbursed drawing in same day funds on the day of notification by such Issuing Lender of an unreimbursed drawing pursuant to and in accordance with the provisions of subsection 2.22(d) if such notice is received at or before 2:00 p.m. on a Business Day, otherwise such payment shall be made at or before 12:00 noon on the Business Day next succeeding the day such notice is received. The obligation of each Bank to so reimburse the Issuing Lenders shall be absolute and unconditional and shall not be
47
affected by the occurrence of a Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of the Company to reimburse the Issuing Lenders under any Letter of Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of Credit, the applicable Issuing Lender will promptly notify the Company and the Administrative Agent. The Company shall reimburse the applicable Issuing Lender on the day of a drawing under any Letter of Credit (with the proceeds of a Loan obtained hereunder or otherwise) in same day funds as provided herein or in the LOC Documents. Unless the Company shall immediately notify the applicable Issuing Lender and the Administrative Agent of its intent to otherwise reimburse such Issuing Lender, the Company shall be deemed to have requested an LOC Mandatory Borrowing in the amount of the drawing as provided in subsection 2.22(f), the proceeds of which will be used to satisfy the applicable Reimbursement Obligation. In the event that any LOC Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any Debtor Relief Law), the applicable Issuing Lender shall notify the Banks of such inability and each Bank hereby agrees that it shall forthwith fund (as of the date that the LOC Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Company on or after such date and prior to such purchase) its Participation Interest in the outstanding Reimbursement Obligations owed to such Issuing Lender. Each Bank shall promptly pay to the Administrative Agent for the account of the applicable Issuing Lender, in Dollars and in immediately available funds, the amount of such Bank’s Commitment Percentage of such Reimbursement Obligation. Such payment shall be made on the day such notice is received by such Bank from such Issuing Lender if such notice is received at or before 2:00 p.m. on a Business Day, otherwise such payment shall be made at or before 12:00 noon on the Business Day next succeeding the day such notice is received. If such Bank does not pay such amount to the applicable Issuing Lender in full upon such request, such Bank shall, on demand, pay to the Administrative Agent for the account of the applicable Issuing Lender interest on the unpaid amount during the period from the date of such drawing until such Bank pays such amount to such Issuing Lender in full at a rate per annum equal to, if paid within two Business Days of the date of drawing, the Federal Funds Rate or, if paid thereafter, the Base Rate. Each Bank’s obligation to make such payment to the Issuing Lenders, and the right of each Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and without regard to the termination of this Agreement or the Commitments hereunder, the existence of a Default or Event of Default or the acceleration of the Obligations hereunder and shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Repayment Obligation Absolute. The Company’s Reimbursement Obligations shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following circumstances (it being understood that any such payment by the Company is without prejudice to, and does not constitute a waiver of, any rights the Company might have or might acquire as a result of the payment by any Issuing Lender or any Bank of any draft or the reimbursement by the Company thereof):
48
(i) any lack of validity or enforceability of any Loan Document;
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Company in respect of Loan Document or any other amendment or waiver of or any consent to departure from all or any of the Loan Documents;
(iii) the existence of any claim, set-off, defense or other right that the Company may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Issuing Lender, the Administrative Agent, any Bank or any other Person, whether in connection with the transactions contemplated by the Loan Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by any Issuing Lender under a Letter of Credit against presentation of a draft or certificate that does not substantially comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the Obligations of the Company in respect of the Loan Documents; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or a guarantor.
(f) Repayment with Loans. On any day on which the Company shall have requested, or been deemed to have requested, a Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent shall give notice to the Banks that a Loan has been requested or deemed requested in connection with a drawing under a Letter of Credit, in which case a Loan borrowing comprised entirely of Base Rate Loans (each such borrowing, an “LOC Mandatory Borrowing”) shall be immediately made (without giving effect to any termination of the Commitments pursuant to Section 7) pro rata based on each Bank’s respective Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7). The proceeds of such LOC Mandatory Borrowing shall be paid directly to the applicable Issuing Lender for application to the respective LOC Obligations. Each Bank hereby irrevocably agrees to make such Loans immediately upon any such request or deemed request on account of each LOC Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date notwithstanding (i) that the amount of the LOC Mandatory Borrowing may not comply with the minimum amount for borrowings of Loans otherwise required hereunder; (ii) whether any conditions specified in subsection 4.2 are then satisfied; (iii)
49
whether a Default or an Event of Default then exists; (iv) the failure for any such request or deemed request for Loan to be made by the time otherwise required in subsection 2.3; (v) the date of such LOC Mandatory Borrowing; or (vi) any reduction in the aggregate amount of the Commitments after any such Letter of Credit may have been drawn upon.
(g) Modification, Extension. The issuance of any supplement, modification, amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be treated in all respects the same as the issuance of a new Letter of Credit hereunder.
(h) Letter of Credit Governing Law. Unless otherwise expressly agreed by the applicable Issuing Lender and the Company when a Letter of Credit is issued, the rules of “International Standby Practices 1998,” as most recently published by the Institute of International Banking Law & Practice at the time of issuance, shall apply to each standby Letter of Credit.
2.23 Indemnification of Issuing Lenders; Nature of Issuing Lenders’ Duties.
(a) In addition to its other obligations under subsection 2.22, the Company hereby agrees to protect, indemnify, pay and save each Issuing Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that any Issuing Lender may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit on behalf such Company or (ii) the refusal of an Issuing Lender to honor a demand for payment under a Letter of Credit issued on behalf of the Company (A) as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions, herein called “Government Acts”) or (B) if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit.
(b) As between the Company and the Issuing Lenders, the Company shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No Issuing Lender shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit to comply fully with conditions required in order to draw upon a Letter of Credit; (iv) for 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) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising from causes beyond the control of the applicable Issuing Lender, including any Government Acts. None of the above shall affect, impair, or prevent the vesting of the Issuing Lenders’ rights or powers hereunder.
50
(c) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by an Issuing Lender, under or in connection with any Letter of Credit or the related certificates, if taken or omitted in the absence of gross negligence, willful misconduct or breach in bad faith, shall not put such Issuing Lender under any resulting liability to the Company. It is the intention of the parties that this Agreement shall be construed and applied to protect and indemnify the Issuing Lenders against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Company, including any and all risks of the acts or omissions, whether rightful or wrongful, of any Governmental Authority. No Issuing Lender shall, in any way, be liable for any failure by an Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of such Issuing Lender. Notwithstanding anything to the contrary herein, the Company shall have a claim against any Issuing Lender and such Issuing Lender shall be liable to the Company, to the extent of any direct, but not consequential, damages suffered by the Company that the Company proves were caused by (i) such Issuing Xxxxxx’s willful misconduct, gross negligence or breach in bad faith in determining whether documents presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii) such Issuing Xxxxxx’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, such Issuing Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
(d) Except as provided in subsection 2.23(e), nothing in this subsection 2.23 is intended to limit the Reimbursement Obligation of the Company contained in subsection 2.22(d). The obligations of the Company under this subsection 2.23 shall survive the termination of this Agreement. No acts or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing Lenders to enforce any right, power or benefit under this Agreement.
(e) Notwithstanding anything to the contrary contained in this subsection 2.23, the Company shall have no obligation to indemnify an Issuing Lender in respect of any liability incurred by such Issuing Lenders arising out of the gross negligence, willful misconduct or breach in bad faith of such Issuing Lender (including action not taken by such Issuing Lender), as finally determined by a court of competent jurisdiction.
2.24 Defaulting Banks.
(a) Notwithstanding anything to the contrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then, until such time as such Bank is no longer a Defaulting Bank, to the extent permitted by applicable law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Majority Banks.
51
(ii) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Section 7 or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to subsection 9.7(b) shall be applied as follows:
(A) FIRST to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder;
(B) SECOND to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Xxxxxx xxxxxxxxx;
(C) THIRD to Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Bank in accordance with subsection 2.26;
(D) FOURTH as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;
(E) FIFTH if so determined by the Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Lenders’ future Fronting Exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement, in accordance with subsection 2.26;
(F) SIXTH to the payment of any amounts owing to the Banks, the Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank or the Issuing Lenders against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement;
(G) SEVENTH so long as no Default or Event of Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and
(H) EIGHTH to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligation in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in subsection 4.2 were satisfied or
52
waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in LOC Obligations are held by the Banks pro rata in accordance with the Commitments without giving effect to subsection 2.24(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this subsection 2.24(a)(ii) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(iii) (A) Each Defaulting Bank shall be entitled to receive a facility fee for any period during which such Bank is a Defaulting Bank only to the extent allocable to the sum of (1) the outstanding principal amount of the Loans funded by it, and (2) its Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to subsection 2.26.
(B) Each Defaulting Bank shall be entitled to receive Letter of Credit Fees for any period during which such Bank is a Defaulting Bank only to the extent allocable to its Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to subsection 2.26.
(C) With respect to any facility fee or Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to clause (A) or (B) above, the Company shall (x) pay to each Non-Defaulting Bank that portion of any such fee otherwise payable to such Defaulting Bank with respect to such Defaulting Bank’s participation in LOC Obligations that has been reallocated to such Non-Defaulting Bank pursuant to subsection 2.24(a)(iv), (y) pay to each Issuing Lender the amount of any such fee otherwise payable to such Defaulting Bank to the extent allocable to such Issuing Lender’s Fronting Exposure to such Defaulting Bank, and (z) not be required to pay the remaining amount of any such fee.
(iv) All or any part of such Defaulting Bank’s participation in LOC Obligations shall be reallocated among the Non-Defaulting Banks in accordance with their respective Commitment Percentages (calculated without regard to such Defaulting Bank’s Commitment) but only to the extent that (x) the conditions set forth in subsection 4.2 are satisfied at the time of such reallocation (and, unless the Company shall have otherwise specifically notified the Administrative Agent, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate principal amount of the Loans and Participation Interests of any Non-Defaulting Bank to exceed such Non-Defaulting Bank’s Commitment. Subject to subsection 9.20, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a Non-Defaulting Bank as a
53
result of such Non-Defaulting Bank’s increased exposure following such reallocation.
(v) If the reallocation described in subsection 2.24(a)(iv) cannot, or can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth in subsection 2.26.
(b) If the Company, the Administrative Agent and each Issuing Lender agree in writing that a Bank is no longer a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Banks in accordance with the Commitments (without giving effect to subsection 2.24(a)(iv)), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Bank was a Defaulting Bank; provided further that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank.
2.25 Extension of Termination Date.
(a) At least 35 days but not more than 70 days prior to any anniversary of the Closing Date, the Company, by written notice to the Administrative Agent, may request an extension of the Termination Date in effect at such time by one year from its then scheduled expiration; provided that the Company may make no more than two such requests. The Administrative Agent shall promptly notify each Bank of such request, and each Bank shall in turn, in its sole discretion, not later than 25 days prior to the applicable anniversary date, notify the Company and the Administrative Agent in writing as to whether such Bank will consent to such extension. If any Bank shall fail to notify the Administrative Agent and the Company in writing of its consent to any such request for extension of the Termination Date at least 25 days prior to the applicable anniversary date, such Bank shall be deemed to be a Non-Extending Bank with respect to such request. The Administrative Agent shall notify the Company not later than 20 days prior to the applicable anniversary date of the decision of the Banks regarding the Company’s request for an extension of the Termination Date.
(b) If Banks holding more than 50% of the aggregate amount of the Commitments then in effect (including Banks assuming or increasing their Commitments in accordance with subsection 2.25(c), each a “Consenting Bank”) consent in writing to any such request in accordance with subsection 2.25(a), the Termination Date of each Consenting Bank in effect at such time shall, effective as at the applicable anniversary date (the “Extension
54
Date”), be extended for one year, but shall not be extended as to any other Bank (each a “Non-Extending Bank”); provided that on each Extension Date (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made on the Closing Date is true and correct in all material respects (except to the extent such representations and warranties are qualified by materiality in the text thereof, in which case such representations and warranties shall be true and correct) on and as of the Extension Date (unless such representation or warranty was made solely as of the Closing Date or any other day specified therein). To the extent that the Termination Date is not extended as to a Bank pursuant to this subsection 2.25 and the Commitment of such Bank is not assumed in accordance with subsection 2.25(c) on or prior to the applicable Extension Date, the Company may, with the consent of all of the Banks other than such Non-Extending Bank (which consents shall not be unreasonably withheld) terminate in whole the Commitment of such Non-Extending Bank as of the Extension Date or, if not so earlier terminated, the Commitment of such Non-Extending Bank shall automatically terminate in whole on such unextended Termination Date without any further notice or other action by the Company, such Bank or any other Person; provided that such Non-Extending Bank’s rights under subsections 2.14, 2.15, 2.16 and 9.5 and its obligations under subsection 8.7 shall survive the Termination Date for such Bank as to matters occurring prior to such date. It is understood and agreed that no Bank shall have any obligation whatsoever to agree to any request made by the Company for any requested extension of the Termination Date.
(c) If less than all of the Banks consent to any such request pursuant to subsection 2.25(a), the Company may arrange for one or more Consenting Banks or other banks or financial institutions approved by the Company, the Administrative Agent and each Issuing Lender that has an outstanding Letter of Credit (which consents shall not be unreasonably withheld) as Purchasing Banks (x) to assume, effective as of the Extension Date or such other date as may be agreed among the Company, the applicable Non-Extending Bank, the assignee Consenting Bank(s) or Purchasing Bank(s) and the Administrative Agent, all of such Non-Extending Bank’s Commitment and all of the obligations of such Non-Extending Bank under this Agreement thereafter arising, without recourse to or warranty by, or expense to, such Non-Extending Bank and (y) to accept, effective as of the Extension Date or such other date as any Purchasing Bank executes and delivers a Commitment Transfer Supplement, the Termination Date applicable to the Consenting Banks; provided, however, that the amount of the Commitment of any such Purchasing Bank as a result of such substitution shall in no event be less than $10,000,000 unless the amount of the Commitment of such Non-Extending Bank is less than $10,000,000, in which case such Purchasing Bank shall assume all of such lesser amount; provided further that:
(i) any such Consenting Bank or Purchasing Bank shall have paid to such Non-Extending Bank an amount equal to (A) the aggregate principal amount of, and any interest accrued and unpaid to the effective date of the assignment on, the outstanding Loans, if any, of such Non-Extending Bank plus (B) any accrued but unpaid facility fees owing to such Non-Extending Bank as of the effective date of such assignment; and
55
(ii) all additional cost reimbursements, expense reimbursements and indemnities payable to such Non-Extending Bank, and all other accrued and unpaid amounts owing to such Non-Extending Bank hereunder, as of the effective date of such assignment shall have been paid to such Non-Extending Bank;
provided further that such Non-Extending Bank’s rights under subsections 2.14, 2.15, 2.16 and 9.5 and its obligations under subsection 8.7, shall survive such substitution as to matters occurring prior to the date of substitution. At least three Business Days prior to any Extension Date, (A) each such Purchasing Bank, if any, shall have delivered to the Company and the Administrative Agent a Commitment Transfer Supplement, duly executed by such Purchasing Bank, such Non-Extending Bank, the Company and the Administrative Agent and (B) each applicable Consenting Bank shall have delivered confirmation in writing satisfactory to the Company and the Administrative Agent as to the increase in the amount of its Commitment. Each Non-Extending Bank being replaced pursuant to this subsection 2.25 shall, upon the request of either the Administrative Agent or the Company, promptly deliver any Note or Notes held by such Non-Extending Bank. Upon the payment or prepayment of all amounts referred to in subsection 2.25(c)(i) or 2.25(c)(ii), each such Consenting Bank or Purchasing Bank, as of the Extension Date, will be substituted for such Non-Extending Bank under this Agreement and shall be a Bank for all purposes of this Agreement, without any further acknowledgment by or the consent of the other Banks, and the obligations of each such Non-Extending Bank hereunder shall, by the provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions pursuant to subsection 2.25(c)) the Banks having Commitments equal to at least 50% of the Commitments in effect immediately prior to the Extension Date consent in writing to a requested extension (whether by execution or delivery of an Assumption Agreement or otherwise) not later than one Business Day prior to such Extension Date, the Administrative Agent shall so notify the Company, and, subject to (i) no Default or Event of Default having occurred and continuing and (ii) each of the representations and warranties made on the Closing Date being true and correct in all material respects (except to the extent such representations and warranties are qualified by materiality in the text thereof, in which case such representations and warranties shall be true and correct) on and as of the Extension Date, then the Termination Date then in effect with respect to each Consenting Bank and Purchasing Bank shall be extended for the additional one-year period as described in subsection 2.25(a), and all references in the Loan Documents to the “Termination Date” shall, with respect to each Consenting Bank and each Purchasing Bank for such Extension Date, refer to the Termination Date as so extended. Promptly following each Extension Date, the Administrative Agent shall notify the Banks (including each Purchasing Bank) of the extension of the scheduled Termination Date in effect immediately prior thereto and shall thereupon record in the Register the relevant information with respect to each such Consenting Bank and each such Purchasing Bank.
2.26 Cash Collateral.
(a) If at any time a Bank becomes a Defaulting Bank, within one Business Day following the written request of the Administrative Agent or any Issuing Lender (with a
56
copy to the Administrative Agent), such Defaulting Bank shall Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Bank in an amount not less than the applicable Fronting Exposure. At any time that there shall exist a Defaulting Bank, within one Business Day following the written request of the Administrative Agent or any Issuing Lender (with a copy to the Administrative Agent), the Company shall Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Bank (determined after giving effect to subsection 2.24(a)(iv) and any Cash Collateral provided by such Defaulting Bank) in an amount not less than the applicable Fronting Exposure. If, as of the termination of the Commitments hereunder, any LOC Obligation remains outstanding, the Company shall immediately Cash Collateralize all outstanding LOC Obligations.
(b) The Company, and to the extent provided by any Defaulting Bank, such Defaulting Bank, hereby grants to the Administrative Agent, for the benefit of the Issuing Lenders, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the obligations to which such Cash Collateral was required to be furnished, to be applied pursuant to subsection 2.26(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Lenders as herein provided, or that the total amount of such Cash Collateral is less than the aggregate Fronting Exposures or the LOC Obligations with respect to any Issuing Lender as the case may be, the Company will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Bank).
(c) Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under subsection 2.24 or this subsection 2.26 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific LOC Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Bank, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
(d) Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Lender’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this subsection 2.26 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Bank status of the applicable Bank) or (ii) the determination by the Administrative Agent and each Issuing Lender that there exists excess Cash Collateral, and upon demand by the Person providing such Cash Collateral, such Cash Collateral (or the appropriate portion thereof) shall be returned to such Person; provided that, subject to subsection 2.24, the Person providing Cash Collateral and each Issuing Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.
57
SECTION 3
To induce the Banks to enter into this Agreement and to extend credit hereunder, the Company hereby represents and warrants to the Administrative Agent and each Bank as of the Closing Date and as of the date of each Extension of Credit that:
3.1 Financial Condition. The consolidated financial statements of the Company and its Subsidiaries delivered to the Administrative Agent in connection with this Agreement, including the audited financial statements for the fiscal year ended December 31, 2017, and the unaudited financial statements for the fiscal quarter ended September 30, 2018, copies of which have heretofore been furnished to each Bank, present fairly the consolidated financial condition of the Company and its Subsidiaries as of the dates and for the periods indicated. Neither the Company nor any of its Subsidiaries had, at the date of the most recent balance sheet referred to above, any guarantee obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment, including any interest rate or foreign currency swap or exchange transaction, that is not reflected in the foregoing statements or in the notes thereto and that, to the best of the Company’s knowledge, would have a Material Adverse Effect.
3.2 No Change. Except as disclosed in any Form 10-K, 10-Q, 8-K or other public filing of the Company with the Securities Exchange Commission filed after the date thereof but prior to the Closing Date, during the period from December 31, 2017, to and including the Closing Date, no change, or development or event involving a prospective change, has occurred that has had or could reasonably be expected to have a Material Adverse Effect; provided, however, that the foregoing representation is made solely as of the Closing Date, on the effective date of any commitment increase pursuant to subsection 2.20 and on the effective date of any extension of the Termination Date pursuant to subsection 2.25.
3.3 Corporate Existence; Compliance with Law. Each of the Company and its Significant Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except to the extent that, in the aggregate, the failure of any such Subsidiaries to be duly organized, validly existing or in good standing would not have a Material Adverse Effect, (ii) has the corporate (or other) power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that, in the aggregate, the failure of any such Subsidiaries to have any such power, authority or legal right would not have a Material Adverse Effect, (iii) is duly qualified and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent that, in the aggregate, the failure of the Company and its Subsidiaries to so qualify or be in good standing would not have a Material Adverse Effect, and (iv) is in compliance with all Requirements of Law except to the extent that, in the aggregate, the failure of the Company and its Subsidiaries to comply therewith would not have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Company has the corporate power and authority, and the legal right, to make, deliver and perform this Agreement
58
and the other existing Loan Documents and to borrow hereunder and has taken all necessary corporate action to authorize its Obligations on the terms and conditions of this Agreement and the other existing Loan Documents and to authorize the execution, delivery and performance of this Agreement and the other existing Loan Documents. No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person (except as have been obtained or made) is required in connection with the borrowings hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or the other existing Loan Documents. This Agreement has been, and each other Loan Document will be, duly executed and delivered on behalf of the Company. This Agreement constitutes, and each other Loan Document when executed and delivered will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents, the Obligations hereunder and the use of the proceeds hereof will not directly or, to the knowledge of the Company, indirectly, violate any Requirement of Law or Contractual Obligation of the Company or of any of its Subsidiaries and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Company, threatened in writing by or against the Company or any of its Subsidiaries or against any of its or their respective properties or revenues that (i) except as listed on Schedule 3.6 or disclosed in any filing of the Company with the SEC made prior to the Closing Date, on the Closing Date, on the effective date of any commitment increase pursuant to subsection 2.20 and on the effective date of any extension of the Termination Date pursuant to subsection 2.25, would have a Material Adverse Effect or (ii) would have a Material Adverse Effect on the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Banks hereunder or thereunder; provided, however, that the representation in clause (i) of this subsection 3.6 is made solely as of the Closing Date, on the date of any commitment increase pursuant to subsection 2.20 and on the date of any extension of the Termination Date pursuant to subsection 2.25.
3.7 Federal Regulations. No part of the proceeds of any Loans or Letters of Credit will be used for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U or Regulation X if such use would violate, or cause the Loans or the Commitments to be in violation of, the provisions of Regulation U or Regulation X. The value of all “margin stock” (within the meaning of the quoted term under Regulation U) owned by the Company or any of its Significant Subsidiaries does not exceed an amount equal to 25% of the value of all assets of the Company and its Significant Subsidiaries.
3.8 Investment Company Act. Neither the Company nor any of its Subsidiaries is subject to registration as an “investment company” or is “controlled” by such a company, within the meaning of the Investment Company Act of 1940.
59
3.9 Purpose of Loans. The proceeds of the Loans and Letters of Credit shall be used by the Comp