U. S. SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
April 22, 2015
(Date of Report–Date of Earliest Event Reported)
CACI
International Inc
(Exact name of registrant as specified in its Charter)
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| Delaware |
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001-31400 |
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54-1345888 |
| (State or other jurisdiction
of incorporation) |
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(Commission
file number) |
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(IRS Employer
Identification No.) |
1100 N. Glebe Road,
Arlington, Virginia 22201
(Address of Principal executive offices) (ZIP code)
(703) 841-7800
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.142-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. |
Entry into a Material Definitive Agreement. |
On April 22, 2015, CACI International Inc and certain
of its subsidiaries (“CACI”) entered into a sixth amendment (the “Amendment”) to its Credit Agreement (as amended, restated and modified from time to time prior to the date hereof, the “Credit Agreement”), dated as of
October 21, 2010, with the lenders named therein and Bank of America, N.A., as administrative agent, swing line lender and letter of credit issuer.
The Amendment modifies the Credit Agreement to (i) extend the maturity date of the credit facilities from November 15, 2018 to June 1, 2020,
with the term loan facility requiring quarterly amortization payments commencing September 30, 2015, equal to 5.0% per annum for each of the first three years, and 10.0% per annum thereafter, and (ii) revise the maximum senior
secured leverage ratio maintenance covenant to remove the step-downs in such covenant, such that the senior secured leverage ratio shall not exceed 4.00:1.00.
All other material terms of the Credit Agreement remain the same. Additional information regarding the terms of the Credit Agreement, as previously amended,
is contained in CACI’s current reports on Form 8-K, filed October 27, 2010, May 19, 2011, November 22, 2011, August 12, 2013, November 5, 2013 and November 18, 2013, which are incorporated
herein by reference.
This summary does not purport to be complete and is qualified in its entirety by the complete text of the Credit Agreement, as
amended previously and pursuant to the Amendment, filed as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5, 10.6 and 10.7 hereto and incorporated herein by reference.
| Item 9.01. |
Financial Statements and Exhibits. |
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| Exhibit
Number |
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Description |
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| 10.1 |
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The Credit Agreement dated October 21, 2010, between CACI International Inc, Bank of America, N.A. and a consortium of participating banks (incorporated by reference to Exhibit 10.1 to CACI’s current report on Form 8-K, filed
October 27, 2010). |
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| 10.2 |
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Amendment dated May 17, 2011 to the Credit Agreement dated October 21, 2010, between CACI International Inc, Bank of America, N.A. and a consortium of participating banks (incorporated by reference to Exhibit 10.2 to CACI’s
current report on Form 8-K, filed May 19, 2011). |
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| 10.3 |
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Amendment dated November 18, 2011 to the Credit Agreement dated October 21, 2010, between CACI International Inc, Bank of America, N.A. and a consortium of participating banks (incorporated by reference to Exhibit 10.3 to
CACI’s current report on Form 8-K, filed November 22, 2011). |
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| 10.4 |
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Amendment dated August 6, 2013 to the Credit Agreement dated October 21, 2010, between CACI International Inc, Bank of America, N.A. and a consortium of participating banks (incorporated by reference to Exhibit 10.4 to CACI’s
current report on Form 8-K, filed August 12, 2013). |
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| 10.5 |
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Amendment dated October 31, 2013 to the Credit Agreement dated October 21, 2010, between CACI International Inc, Bank of America, N.A. and a consortium of participating banks (incorporated by reference to Exhibit 10.5 to CACI’s
current report on Form 8-K, filed November 5, 2013). |
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| 10.6 |
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Amendment dated November 15, 2013 to the Credit Agreement dated October 21, 2010, between CACI International Inc, Bank of America, N.A. and a consortium of participating banks (incorporated by reference to Exhibit 10.6 to
CACI’s current report on Form 8-K, filed November 18, 2013). |
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| 10.7* |
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Amendment dated April 22, 2015 to the Credit Agreement dated October 21, 2010, between CACI International Inc, Bank of America, N.A. and a consortium of participating banks. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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| CACI International Inc |
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| By: |
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/s/ J. William Koegel, Jr. |
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J. William Koegel, Jr. |
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Executive Vice President, General Counsel
and Secretary |
Dated: April 28, 2015
Exhibit 10.7
SIXTH AMENDMENT TO
CREDIT AGREEMENT
Dated as of
April 22, 2015
among
CACI INTERNATIONAL INC,
as the
Borrower,
THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,
as the Guarantors,
BANK OF
AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
and
The Lenders Party Hereto
Arranged By:
MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED,
as Sole Lead Arranger and Sole Bookrunner
SIXTH AMENDMENT
THIS SIXTH AMENDMENT (this “Amendment”) dated as of April 22, 2015 to the Credit Agreement referenced below is by and
among CACI International Inc, a Delaware corporation (the “Borrower”), the Guarantors identified on the signature pages hereto, the Lenders identified on the signature pages hereto and Bank of America, N.A., in its capacity as
Administrative Agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H
WHEREAS, revolving credit and term loan facilities have been extended to the Borrower pursuant to the Credit Agreement dated as of
October 21, 2010 among the Borrower, the Guarantors identified therein, the Lenders identified therein and the Administrative Agent (as amended, modified, supplemented, increased and extended from time to time, the “Credit
Agreement”); and
WHEREAS, the Borrower has requested certain modifications to the Credit Agreement and all the Lenders have
agreed to the requested modifications to the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, IN
CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the
Credit Agreement (as amended hereby).
2. Amendments. The Credit Agreement is hereby amended in its entirety to read in the form
attached hereto as Exhibit A. Schedule 2.01 to the Credit Agreement is hereby amended in its entirety to read in the form attached hereto as Exhibit B.
3. Reallocation.
(a)
Immediately after giving effect to the amendment of the amount of each Lender’s Revolving Commitment as contemplated herein, (i) the risk participations of the Revolving Lenders in each outstanding Letter of Credit and each outstanding
Swing Line Loan shall be automatically reallocated such that (A) the risk participation of each Revolving Lender in each outstanding Letter of Credit equals the product of such Revolving Lender’s Applicable Percentage times the
amount of such Letter of Credit and (B) the risk participation of each Revolving Lender in each outstanding Swing Line Loan equals the product of such Revolving Lender’s Applicable Percentage times the amount of such Swing Line
Loan, and (ii) each Revolving Lender that provides an increased Revolving Commitment in connection with this Amendment shall make Revolving Loans the proceeds of which shall be applied by the Administrative Agent to prepay existing Revolving
Loans in an amount necessary such that after giving effect to such Borrowing and prepayment each Revolving Lender will hold its Applicable Percentage of the Outstanding Amount of all Revolving Loans.
(b) The Outstanding Amount of the Term Loan under the Credit Agreement immediately prior to giving effect to this Amendment shall remain
outstanding immediately after giving effect to this Amendment. Each Lender with a Term Loan Commitment (as set forth on Schedule 2.01 after giving effect to this Amendment) that exceeds the Outstanding Amount of the Term Loan held by such Lender,
immediately prior to giving effect to this Amendment, shall advance the amount of such increase on the date hereof and the proceeds shall be applied by the Administrative Agent to Lenders whose Term Loan is being repaid on the date hereof.
(c) Each Eurodollar Rate Loan outstanding immediately prior to giving effect to this Amendment
shall maintain the same Interest Period applicable to such Eurodollar Rate Loan immediately prior to giving effect to this Amendment and shall be subject to conversion and/or continuation upon expiration of such Interest Period in accordance with
the terms of the Credit Agreement. Revolving Loans made by Revolving Lenders providing an increased Revolving Commitments pursuant to Section 3(a)(ii) above to prepay existing Revolving Loans shall have Interest Periods that expire
concurrently with the expiration of the Interest Periods applicable to the existing Revolving Loans so prepaid, and shall be subject to conversion and/or continuation upon expiration of such Interest Periods in accordance with the terms of the
Credit Agreement.
(d) Each Lender waives any right to compensation under Section 3.05 of the Credit Agreement in connection
with the transactions described in clauses (a), (b) and (c) above.
4. Conditions Precedent. This Amendment shall become
effective as of the date hereof upon satisfaction of the following conditions precedent:
(a) Receipt by the Administrative
Agent of counterparts of this Amendment duly executed by the Loan Parties and the Lenders.
(b) Receipt by the
Administrative Agent of a Note duly executed by the Borrower in favor of each new Lender that is joining the Credit Agreement by executing this Amendment and has requested a Note from the Borrower.
(c) Receipt by the Administrative Agent of customary opinions of legal counsel to the Loan Parties (substantially consistent
with those opinions delivered in connection with previous amendments to the Credit Agreement), addressed to the Administrative Agent and each Lender, dated as of the date hereof.
(d) Receipt by the Administrative Agent of such certificates of resolutions or other action of the Loan Parties authorizing and
approving this Amendment.
(e) Receipt by the Administrative Agent of such documents and certifications as the
Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(f) Receipt by the Administrative Agent, the Arrangers and the Lenders of any fees required to be paid on or before the date
hereof.
(g) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of
counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
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5. Amendment is a “Loan Document”. This Amendment is a Loan Document and all
references to a “Loan Document” in the Credit Agreement and the other Loan Documents (including, without limitation, all such references in the representations and warranties in the Credit Agreement and the other Loan Documents) shall be
deemed to include this Amendment.
6. Representations and Warranties; No Default. Each Loan Party represents and warrants to the
Administrative Agent and each Lender that:
(a) The execution, delivery and performance by each Loan Party of this
Amendment and the Credit Agreement as amended hereby have been duly authorized by all necessary corporate or other organizational action, and do not (i) contravene the terms of any of such Person’s Organization Documents;
(ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any material Contractual Obligation to which such Person is a party or affecting such Person or
the properties of such Person or any of its Subsidiaries or (B) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any
material Law.
(b) This Amendment has been duly executed and delivered by the Loan Parties and constitutes each of the Loan
Parties’ legal, valid and binding obligations, enforceable against the Loan Parties in accordance with its terms, except (i) as enforceability may be limited by applicable Debtor Relief Laws, by fraudulent conveyance laws or by equitable
principles relating to enforceability, (ii) as enforceability of the Liens granted under the Loan Documents may be limited by anti-assignment provisions in contracts with Government Authorities that are not rendered ineffective by applicable
law and (iii) as enforceability may be limited by the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Equity Interests in Foreign Subsidiaries.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment or the Credit Agreement as amended hereby other than (i) those that
have already been obtained and are in full force and effect, (ii) filings to perfect the Liens created by the Collateral Document and (iii) approvals, consents, exemptions, authorizations or other actions, notices or filings which are not
material.
(d) After giving effect to this Amendment, (i) the representations and warranties of each Loan Party
contained in the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection therewith, are true and correct in all material respects on and as of the date hereof, except to the
extent that (A) such representations and warranties specifically refer to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date, and (B) such
representations and warranties are qualified as to materiality, in which case they are true and correct in all respects as of such date (or such earlier date), and (ii) no Default exists.
7. Reaffirmation of Obligations. Each Loan Party (a) acknowledges and consents to all of the terms and conditions of this
Amendment and other transactions contemplated hereby, (b) affirms all of its obligations under the Credit Agreement (as amended hereby) and the other Loan Documents and (c) agrees that this Amendment and all documents executed in
connection herewith do not operate to reduce or discharge such Loan Party’s obligations under the Loan Documents.
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8. Reaffirmation of Security Interests. Each Loan Party (a) agrees that,
notwithstanding the effectiveness of this Amendment, the Security Agreement and each of the other Collateral Documents continue to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (b) confirms its
guaranty of the Obligations and its grant of a security interest pursuant to the Collateral Documents in its assets that constitute Collateral as collateral therefor, all as provided in the Loan Documents as originally executed and
(c) acknowledges that such guaranty and grant continues in full force and effect in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents.
9. New Lenders. By executing this Amendment, each Lender that was not a party to the Credit Agreement prior to the date of this
Amendment hereby joins the Credit Agreement as a Lender party thereto, ratifies the terms and conditions of the Credit Agreement and agrees to be bound by all of the terms and conditions of the Credit Agreement.
10. FATCA Representation. For purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of the
Amendment, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Obligations as not qualifying as a “grandfathered obligation” within the meaning of Treasury
Regulation Section 1.1471-2(b)(2)(i).
11. No Other Changes. Except as modified hereby, all of the terms and provisions of the
Loan Documents shall remain in full force and effect.
12. Counterparts; Delivery. This Amendment may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of this Amendment by facsimile or
other electronic imaging means shall be effective as an original.
13. Governing Law. This Amendment shall be deemed to be a
contract made under, and for all purposes shall be construed in accordance with, the laws of the State of New York.
[SIGNATURE PAGES
FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to be duly
executed as of the date first above written.
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| BORROWER: |
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CACI INTERNATIONAL INC, a Delaware corporation |
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By: |
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/s/ Thomas A. Mutryn |
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Name: |
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Thomas A. Mutryn |
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Title: |
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Executive Vice President, Chief Financial Officer & Treasurer |
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| GUARANTORS: |
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CACI PRODUCTS COMPANY, a Delaware corporation
CACI PRODUCTS COMPANY CALIFORNIA, a California corporation CACI,
INC. - FEDERAL, a Delaware corporation CACI, INC. - COMMERCIAL, a Delaware corporation
CACI TECHNOLOGIES, INC., a Virginia corporation CACI DYNAMIC
SYSTEMS, INC., a Virginia corporation CACI PREMIER TECHNOLOGY, INC., a Delaware corporation
CACI MTL SYSTEMS, INC., a Delaware corporation CACI-CMS
INFORMATION SYSTEMS, INC, a Virginia corporation CACI ENTERPRISE SOLUTIONS, INC., a Delaware corporation
R.M. VREDENBURG & CO, a Virginia corporation CACI-WGI, INC.,
a Delaware corporation CACI SECURED TRANSFORMATIONS, INC., a Florida corporation
CACI-NSR, INC., a Delaware corporation CACI TECHNOLOGY INSIGHTS,
INC., a Virginia corporation CACI-ATHENA, INC., a Delaware corporation
BUSINESS DEFENSE AND SECURITY CORPORATION, a Virginia
corporation CACI-ISS, INC., a Delaware corporation
CACI-SYSTEMWARE INC., a California corporation APPLIED SYSTEMS
RESEARCH, INC., a Virginia corporation TECHNIGRAPHICS, INC., an Ohio corporation
PANGIA TECHNOLOGIES, LLC, a Nevada limited liability company
DELTA SOLUTIONS AND TECHNOLOGIES, INC. a Virginia corporation
CACI-APG, LLC, a Virginia limited liability company PARADIGM
SOLUTIONS CORPORATION, a Maryland corporation TRINITY INFORMATION MANAGEMENT SERVICES, INC.,
a Nevada corporation EMERGINT TECHNOLOGIES, INC., a Georgia
corporation IDL SOLUTIONS, INC., a Wisconsin corporation SIX3
SYSTEMS, INC., a Delaware corporation SIX3 SYSTEMS HOLDINGS II, INC., a Delaware corporation
SIX3 ENTERPRISE SYSTEMS, LLC, a Maryland limited liability company
SIX3 ADVANCED SYSTEMS, INC., a Virginia corporation SIX3
INTELLIGENCE SOLUTIONS, INC., a Virginia corporation TICOM GEOMATICS, INC., a Texas corporation |
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By: |
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/s/ Thomas A. Mutryn |
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Name: |
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Thomas A. Mutryn |
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Title: |
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Executive Vice President, Chief Financial Officer & Treasurer |
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| ADMINISTRATIVE AGENT: |
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BANK OF AMERICA, N.A., as Administrative Agent |
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By: |
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/s/ Roberto Salazar |
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Name: |
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Roberto Salazar |
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Title: |
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Vice President |
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| LENDERS: |
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BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender |
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By: |
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/s/ Michael J. Radcliffe |
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Name: |
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Michael J. Radcliffe |
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Title: |
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Senior Vice President |
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JPMORGAN CHASE BANK, N.A. |
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By: |
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/s/ Anthony Galea |
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Name: |
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Anthony Galea |
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Title: |
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Vice President |
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SUNTRUST BANK |
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By: |
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/s/ David Simpson |
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Name: |
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David Simpson |
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Title: |
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Director |
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WELLS FARGO BANK, NATIONAL ASSOCIATION |
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By: |
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/s/ Scott Santa Cruz |
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Name: |
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Scott Santa Cruz |
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Title: |
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Managing Director |
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PNC BANK, NATIONAL ASSOCIATION |
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By: |
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/s/ Crissola K. Talsania |
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Name: |
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Crissola K. Talsania |
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Title: |
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Vice President |
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ROYAL BANK OF CANADA |
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By: |
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/s/ Richard C. Smith |
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Name: |
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Richard C. Smith |
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Title: |
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Authorized Signatory |
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BARCLAYS BANK PLC |
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By: |
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/s/ Christopher Lee |
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Name: |
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Christopher Lee |
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Title: |
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Vice President |
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| REGIONS BANK |
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| By: |
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/s/ Gregory H. Jones |
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| Name: |
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Gregory H. Jones |
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| Title: |
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Senior Vice President |
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| MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD., NEW YORK BRANCH |
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| By: |
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/s/ Angela Chen |
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| Name: |
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Angela Chen |
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| Title: |
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VP & DGM |
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| THE BANK OF TOKYO MITSUBISHI UFJ, LTD. |
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| By: |
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/s/ Maria Iarriccio |
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| Name: |
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Maria Iarriccio |
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| Title: |
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Director |
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| FIFTH THIRD BANK |
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| By: |
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/s/ Neil Kiernan |
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| Name: |
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Neil Kiernan |
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| Title: |
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Vice President |
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| GOLDMAN SACHS BANK USA |
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| By: |
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/s/ Rebecca Kratz |
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| Name: |
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Rebecca Kratz |
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| Title: |
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Authorized Signatory |
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| SYNOVUS BANK |
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| By: |
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/s/ Matthew McKee |
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| Name: |
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Matthew McKee |
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| Title: |
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Corporate Banker |
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| MANUFACTURERS BANK |
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| By: |
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/s/ Charles Jou |
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| Name: |
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Charles Jou |
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| Title: |
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Vice President |
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| TD BANK, N.A. |
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| By: |
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/s/ Brian Haggerty |
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| Name: |
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Brian Haggerty |
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| Title: |
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Vice President |
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| CAPITAL ONE NATIONAL ASSOCIATION |
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| By: |
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/s/ Joseph C. Costa |
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| Name: |
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Joseph C. Costa |
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| Title: |
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Senior Vice President |
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| BRANCH BANKING AND TRUST COMPANY |
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| By: |
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/s/ John K. Perez |
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| Name: |
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John K. Perez |
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| Title: |
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Senior Vice President |
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| CITIZENS BANK OF PENNSYLVANIA |
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| By: |
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/s/ Leslie Grizzard |
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| Name: |
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Leslie Grizzard |
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| Title: |
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Senior Vice President |
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| THE NORTHERN TRUST COMPANY |
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| By: |
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/s/ Joshua Metcalf |
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| Name: |
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Joshua Metcalf |
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| Title: |
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Officer |
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| FIRST COMMONWEALTH BANK |
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| By: |
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/s/ Mark A. Woleslagle |
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| Name: |
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Mark A. Woleslagle |
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| Title: |
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Corporate Banking Associate, AVP |
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| THE BANK OF EAST ASIA, LIMITED, NEW YORK BRANCH |
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| By: |
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/s/ James Hua |
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| Name: |
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James Hua |
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| Title: |
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Senior Vice President |
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| By: |
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/s/ Kitty Sin |
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| Name: |
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Kitty Sin |
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| Title: |
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Senior Vice President |
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| CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH |
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| By: |
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/s/ Jane S.C. Yang |
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| Name: |
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Jane S.C. Yang |
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| Title: |
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VP & General Manager |
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| SUMITOMO MITSUI BANKING CORPORATION, NEW YORK |
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| By: |
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/s/ David W. Kee |
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| Name: |
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David W. Kee |
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| Title: |
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Managing Director |
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|
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| STIFEL BANK & TRUST |
|
|
|
| By: |
|
/s/ John Haffenreffer |
|
|
| Name: |
|
John Haffenreffer |
|
|
| Title: |
|
President |
|
|
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| E.SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH |
|
|
|
| By: |
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/s/ Homer Hou |
|
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| Name: |
|
Homer Hou |
|
|
| Title: |
|
Vice President & Credit Manager |
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|
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|
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| HUA NAN COMMERCIAL BANK, LTD. |
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|
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| By: |
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/s/ Eric Chen |
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| Name: |
|
Eric Chen |
|
|
| Title: |
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VP and General Manager |
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|
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| TAIWAN BUSINESS PARK, CO., LTD., A REPUBLIC OF CHINA BANK
ACTING THROUGH ITS LOS ANGELES BRANCH AS A LENDER |
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|
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| By: |
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/s/ Sandy Chen |
|
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| Name: |
|
Sandy Chen |
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| Title: |
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General Manager |
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|
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| TAIWAN COOPERATIVE BANK LTD. SEATTLE BRANCH |
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|
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| By: |
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/s/ Ming Chih Chen |
|
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| Name: |
|
Ming Chih Chen |
|
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| Title: |
|
V.P. AND GENERAL MANAGER |
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| XENITH BANK |
|
|
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| By: |
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/s/ M.C. O’Grady |
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|
| Name: |
|
M.C. O’Grady |
|
|
| Title: |
|
Senior Vice President |
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| LAND BANK OF TAIWAN, NEW YORK BRANCH |
|
|
|
| By: |
|
/s/ Chao-Fu (Arthur) Chen |
|
|
| Name: |
|
Chao-Fu (Arthur) Chen |
|
|
| Title: |
|
General Manager |
|
|
EXHIBIT A
AMENDED CREDIT AGREEMENT
See attached.
Exhibit A
Published CUSIP Numbers
|
|
|
|
|
|
|
|
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| |
|
|
|
Deal: |
|
|
12718FAA2 |
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|
|
|
|
Revolver: |
|
|
12718FAC8 |
|
|
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|
|
Term Loan: |
|
|
12718FAB0 |
CREDIT AGREEMENT
Dated as of October 21, 2010
among
CACI INTERNATIONAL INC,
as the Borrower,
THE
SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as
Administrative Agent, Swing Line Lender and L/C Issuer,
JPMORGAN CHASE BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION,
ROYAL BANK OF CANADA,
SUNTRUST
BANK,
and
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
as Co-Syndication Agents,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
and
FIFTH THIRD BANK,
as Co-Documentation Agents
and
THE OTHER LENDERS PARTY HERETO
Arranged By:
MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED,
J.P. MORGAN SECURITIES LLC,
WELLS FARGO SECURITIES, LLC,
ROYAL
BANK OF CANADA,
SUNTRUST ROBINSON HUMPHREY, INC.,
and
PNC CAPITAL MARKETS, LLC,
as Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
|
|
|
|
|
|
|
| ARTICLE I DEFINITIONS AND ACCOUNTING TERMS |
|
1 |
|
| 1.01 |
|
Defined Terms |
|
|
1 |
|
| 1.02 |
|
Other Interpretive Provisions |
|
|
32 |
|
| 1.03 |
|
Accounting Terms; Calculation of Financial Covenants on a Pro Forma Basis |
|
|
32 |
|
| 1.04 |
|
Rounding |
|
|
33 |
|
| 1.05 |
|
Times of Day; Rates |
|
|
33 |
|
| 1.06 |
|
Letter of Credit Amounts |
|
|
33 |
|
| ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS |
|
|
34 |
|
| 2.01 |
|
Revolving Loans and Term Loan |
|
|
34 |
|
| 2.02 |
|
Borrowings, Conversions and Continuations of Loans |
|
|
34 |
|
| 2.03 |
|
Letters of Credit |
|
|
36 |
|
| 2.04 |
|
Swing Line Loans |
|
|
43 |
|
| 2.05 |
|
Prepayments |
|
|
46 |
|
| 2.06 |
|
Termination or Reduction of Aggregate Revolving Commitments |
|
|
51 |
|
| 2.07 |
|
Repayment of Loans |
|
|
51 |
|
| 2.08 |
|
Interest |
|
|
52 |
|
| 2.09 |
|
Fees |
|
|
53 |
|
| 2.10 |
|
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate |
|
|
53 |
|
| 2.11 |
|
Evidence of Debt |
|
|
54 |
|
| 2.12 |
|
Payments Generally; Administrative Agent’s Clawback |
|
|
54 |
|
| 2.13 |
|
Sharing of Payments by Lenders |
|
|
56 |
|
| 2.14 |
|
Cash Collateral |
|
|
56 |
|
| 2.15 |
|
Defaulting Lenders |
|
|
57 |
|
| 2.16 |
|
Incremental Facilities; Extensions |
|
|
60 |
|
| ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY |
|
|
63 |
|
| 3.01 |
|
Taxes |
|
|
63 |
|
| 3.02 |
|
Illegality |
|
|
67 |
|
| 3.03 |
|
Inability to Determine Rates |
|
|
67 |
|
| 3.04 |
|
Increased Costs; Reserves on Eurodollar Rate Loans |
|
|
68 |
|
| 3.05 |
|
Compensation for Losses |
|
|
69 |
|
| 3.06 |
|
Mitigation of Obligations; Replacement of Lenders |
|
|
70 |
|
| 3.07 |
|
Survival |
|
|
70 |
|
| ARTICLE IV GUARANTY |
|
|
71 |
|
| 4.01 |
|
The Guaranty |
|
|
71 |
|
| 4.02 |
|
Obligations Unconditional |
|
|
71 |
|
| 4.03 |
|
Reinstatement |
|
|
72 |
|
| 4.04 |
|
Certain Additional Waivers |
|
|
72 |
|
| 4.05 |
|
Remedies |
|
|
72 |
|
| 4.06 |
|
Rights of Contribution |
|
|
73 |
|
| 4.07 |
|
Guarantee of Payment; Continuing Guarantee |
|
|
73 |
|
| 4.08 |
|
Release of Guarantors |
|
|
73 |
|
| 4.09 |
|
Keepwell |
|
|
73 |
|
| ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS |
|
|
73 |
|
| 5.01 |
|
Conditions of Effectiveness |
|
|
73 |
|
| 5.02 |
|
Conditions to all Credit Extensions |
|
|
75 |
|
| ARTICLE VI REPRESENTATIONS AND WARRANTIES |
|
|
76 |
|
| 6.01 |
|
Existence, Qualification and Power |
|
|
76 |
|
| 6.02 |
|
Authorization; No Contravention |
|
|
76 |
|
| 6.03 |
|
Governmental Authorization; Other Consents |
|
|
76 |
|
i
|
|
|
|
|
|
|
| 6.04 |
|
Binding Effect |
|
|
76 |
|
| 6.05 |
|
Financial Statements; No Material Adverse Effect |
|
|
77 |
|
| 6.06 |
|
Litigation |
|
|
77 |
|
| 6.07 |
|
No Default |
|
|
77 |
|
| 6.08 |
|
Ownership of Property; Liens |
|
|
78 |
|
| 6.09 |
|
Environmental Compliance |
|
|
78 |
|
| 6.10 |
|
Insurance |
|
|
79 |
|
| 6.11 |
|
Taxes |
|
|
79 |
|
| 6.12 |
|
ERISA Compliance |
|
|
79 |
|
| 6.13 |
|
Subsidiaries |
|
|
80 |
|
| 6.14 |
|
Margin Regulations; Investment Company Act |
|
|
80 |
|
| 6.15 |
|
Disclosure |
|
|
80 |
|
| 6.16 |
|
Compliance with Laws |
|
|
80 |
|
| 6.17 |
|
Intellectual Property; Licenses, Etc. |
|
|
80 |
|
| 6.18 |
|
Solvency |
|
|
81 |
|
| 6.19 |
|
Perfection of Security Interests in the Collateral |
|
|
81 |
|
| 6.20 |
|
Business Locations; Taxpayer Identification Number |
|
|
81 |
|
| 6.21 |
|
OFAC |
|
|
81 |
|
| 6.22 |
|
Anti-Corruption Laws |
|
|
81 |
|
| ARTICLE VII AFFIRMATIVE COVENANTS |
|
|
82 |
|
| 7.01 |
|
Financial Statements |
|
|
82 |
|
| 7.02 |
|
Certificates; Other Information |
|
|
82 |
|
| 7.03 |
|
Notices |
|
|
84 |
|
| 7.04 |
|
Payment of Taxes |
|
|
84 |
|
| 7.05 |
|
Preservation of Existence, Etc. |
|
|
85 |
|
| 7.06 |
|
Maintenance of Properties |
|
|
85 |
|
| 7.07 |
|
Maintenance of Insurance |
|
|
85 |
|
| 7.08 |
|
Compliance with Laws |
|
|
85 |
|
| 7.09 |
|
Books and Records |
|
|
86 |
|
| 7.10 |
|
Inspection Rights |
|
|
86 |
|
| 7.11 |
|
Use of Proceeds |
|
|
86 |
|
| 7.12 |
|
Additional Subsidiaries |
|
|
86 |
|
| 7.13 |
|
Pledged Assets |
|
|
87 |
|
| 7.14 |
|
State of Formation and Form of Entity |
|
|
88 |
|
| 7.15 |
|
Anti-Corruption Laws |
|
|
88 |
|
| ARTICLE VIII NEGATIVE COVENANTS |
|
|
88 |
|
| 8.01 |
|
Liens |
|
|
88 |
|
| 8.02 |
|
Investments |
|
|
90 |
|
| 8.03 |
|
Indebtedness |
|
|
92 |
|
| 8.04 |
|
Fundamental Changes |
|
|
93 |
|
| 8.05 |
|
Dispositions |
|
|
93 |
|
| 8.06 |
|
Restricted Payments |
|
|
94 |
|
| 8.07 |
|
Change in Nature of Business |
|
|
94 |
|
| 8.08 |
|
Transactions with Affiliates |
|
|
95 |
|
| 8.09 |
|
Burdensome Agreements |
|
|
95 |
|
| 8.10 |
|
Use of Proceeds |
|
|
95 |
|
| 8.11 |
|
Financial Covenants |
|
|
96 |
|
| 8.12 |
|
Prepayments of Subordinated Indebtedness and Senior Unsecured Indebtedness |
|
|
96 |
|
| 8.13 |
|
Subordinated Indebtedness Documents |
|
|
97 |
|
| 8.14 |
|
Organization Documents; Fiscal Year; Legal Name |
|
|
97 |
|
| 8.15 |
|
Sale Leasebacks |
|
|
97 |
|
ii
|
|
|
|
|
|
|
| 8.16 |
|
Sanctions |
|
|
97 |
|
| 8.17 |
|
Anti-Corruption Laws |
|
|
97 |
|
| ARTICLE IX EVENTS OF DEFAULT AND REMEDIES |
|
|
97 |
|
| 9.01 |
|
Events of Default |
|
|
97 |
|
| 9.02 |
|
Remedies Upon Event of Default |
|
|
99 |
|
| 9.03 |
|
Application of Funds |
|
|
100 |
|
| ARTICLE X ADMINISTRATIVE AGENT |
|
|
102 |
|
| 10.01 |
|
Appointment and Authority |
|
|
102 |
|
| 10.02 |
|
Rights as a Lender |
|
|
102 |
|
| 10.03 |
|
Exculpatory Provisions |
|
|
102 |
|
| 10.04 |
|
Reliance by Administrative Agent |
|
|
103 |
|
| 10.05 |
|
Delegation of Duties |
|
|
104 |
|
| 10.06 |
|
Resignation of Administrative Agent |
|
|
104 |
|
| 10.07 |
|
Non-Reliance on Administrative Agent and Other Lenders |
|
|
105 |
|
| 10.08 |
|
No Other Duties; Etc. |
|
|
105 |
|
| 10.09 |
|
Administrative Agent May File Proofs of Claim |
|
|
105 |
|
| 10.10 |
|
Collateral and Guaranty Matters |
|
|
106 |
|
| 10.11 |
|
Secured Cash Management Agreements and Secured Hedge Agreements |
|
|
107 |
|
| ARTICLE XI MISCELLANEOUS |
|
|
107 |
|
| 11.01 |
|
Amendments, Etc. |
|
|
107 |
|
| 11.02 |
|
Notices; Effectiveness; Electronic Communications |
|
|
109 |
|
| 11.03 |
|
No Waiver; Cumulative Remedies; Enforcement |
|
|
111 |
|
| 11.04 |
|
Expenses; Indemnity; and Damage Waiver |
|
|
112 |
|
| 11.05 |
|
Payments Set Aside |
|
|
113 |
|
| 11.06 |
|
Successors and Assigns |
|
|
114 |
|
| 11.07 |
|
Treatment of Certain Information; Confidentiality |
|
|
118 |
|
| 11.08 |
|
Set-off |
|
|
119 |
|
| 11.09 |
|
Interest Rate Limitation |
|
|
120 |
|
| 11.10 |
|
Counterparts; Integration; Effectiveness |
|
|
120 |
|
| 11.11 |
|
Survival of Representations and Warranties |
|
|
120 |
|
| 11.12 |
|
Severability |
|
|
121 |
|
| 11.13 |
|
Replacement of Lenders |
|
|
121 |
|
| 11.14 |
|
Governing Law; Jurisdiction; Etc. |
|
|
122 |
|
| 11.15 |
|
Waiver of Jury Trial |
|
|
123 |
|
| 11.16 |
|
No Advisory or Fiduciary Responsibility |
|
|
123 |
|
| 11.17 |
|
Electronic Execution of Assignments and Certain Other Documents |
|
|
123 |
|
| 11.18 |
|
Subordination of Intercompany Indebtedness |
|
|
124 |
|
| 11.19 |
|
USA PATRIOT Act |
|
|
125 |
|
| 11.20 |
|
Designated Senior Debt |
|
|
125 |
|
iii
|
|
|
| SCHEDULES |
|
|
|
|
| 2.01 |
|
Commitments and Applicable Percentages |
| 2.03 |
|
Existing Letters of Credit |
| 6.13 |
|
Subsidiaries |
| 6.17 |
|
IP Rights |
| 6.20-1 |
|
Location of Chief Executive Office, Taxpayer Identification Number, Etc. |
| 6.20-2 |
|
Changes in Legal Name, State of Formation and Structure |
| 8.01 |
|
Liens Existing on the Closing Date |
| 8.02 |
|
Investments Existing on the Closing Date |
| 8.03 |
|
Indebtedness Existing on the Closing Date |
| 8.09 |
|
Burdensome Agreements |
| 11.02 |
|
Certain Addresses for Notices |
|
|
| EXHIBITS |
|
|
|
|
| 2.02 |
|
Form of Loan Notice |
| 2.04 |
|
Form of Swing Line Loan Notice |
| 2.05-1 |
|
Form of Discounted Optional Prepayment Notice |
| 2.05-2 |
|
Form of Lender Participation Notice |
| 2.05-3 |
|
Form of Notice of Discounted Prepayment |
| 2.11 |
|
Form of Note |
| 7.02 |
|
Form of Compliance Certificate |
| 7.12 |
|
Form of Joinder Agreement |
| 11.06 |
|
Form of Assignment and Assumption |
iv
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of October 21, 2010 among CACI INTERNATIONAL INC, a Delaware corporation (the
“Borrower”), the Guarantors (defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide $1,681,250,000 in credit facilities for the purposes set forth herein, and the Lenders are
willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01
Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below:
“Acceptable Price” has the meaning specified in Section 2.05(b).
“Acceptance Date” has the meaning specified in Section 2.05(b).
“Acquisition” means, with respect to any Person, the acquisition by such Person, in a single transaction or in a series of
related transactions, of either (a) all or any substantial portion of the property of, or a line of business, product line, or division of, another Person or (b) Equity Interests of another Person such that after giving effect to such
acquisition such other Person shall be a Subsidiary, in each case whether or not involving a merger or consolidation with such other Person.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any
successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and,
as appropriate, account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form provided by the Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Aggregate Revolving
Commitments” means the Revolving Commitments of all the Lenders. The amount of the Aggregate Revolving Commitments in effect on the Fifth Amendment Closing Date is EIGHT HUNDRED FIFTY MILLION DOLLARS ($850,000,000).
“Agreement” means this Credit Agreement.
1
“Applicable Discount” has the meaning specified in Section 2.05(b).
“Applicable Percentage” means with respect to any Lender at any time, (a) with respect to such Lender’s
Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time, subject to adjustment as provided in
Section 2.15; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate
Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments; and (b) with respect
to such Lender’s portion of the outstanding Term Loan at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of the Term Loan held by such Lender at such time subject to
adjustment as provided in Section 2.15. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto or in any documentation executed by such Lender pursuant to Section 2.16(a), as applicable.
“Applicable
Period” means the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b).
“Applicable Rate” means the following percentages per annum, based upon the Consolidated Total Leverage Ratio as set forth in
the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(b):
|
|
|
|
|
|
|
|
|
| Pricing
Tier |
|
Consolidated Total
Leverage Ratio |
|
Eurodollar Rate
Loans |
|
Base Rate
Loans |
|
Commitment Fee |
| 1 |
|
< 1.25:1.0 |
|
1.25% |
|
0.25% |
|
0.20% |
| 2 |
|
³ 1.25:1.0 but < 2.25:1.0 |
|
1.50% |
|
0.50% |
|
0.25% |
| 3 |
|
³ 2.25:1.0 but < 3.25:1.0 |
|
1.75% |
|
0.75% |
|
0.30% |
| 4 |
|
³ 3.25:1.0 but < 4.25:1.0 |
|
2.00% |
|
1.00% |
|
0.35% |
| 5 |
|
³ 4.25:1.0 |
|
2.50% |
|
1.50% |
|
0.40% |
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Total Leverage Ratio shall become
effective as of the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 7.02(b); provided, however, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall
remain in effect until the date on which such Compliance Certificate is delivered in accordance with Section 7.02(b). The Applicable Rate in effect (a) prior to the Fifth Amendment Closing Date shall be determined in accordance with
the above and (b) from the Fifth Amendment Closing Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 7.02(b) for the fiscal quarter ending
December 31, 2013 shall be determined based upon Pricing Tier 4. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of
Section 2.10(b).
“Approved Bank” has the meaning specified in the definition of Cash Equivalents.
“Approved Foreign Bank” means any bank, trust company or national banking association incorporated under the laws of any
country (other than the United States) having combined capital and
2
surplus retained earnings of the local currency counter value of at least $100,000,000 and having a rating of A, its equivalent or higher by Standard & Poor’s Corporation or
Moody’s Investors Service, Inc. (or, if neither such organization shall rate such institution at any time, by any nationally recognized rating organization in the country).
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or
(c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” means each of
(a) MLPFS, in its capacity as joint lead arranger and joint book manager and (b) any other Person designated as a lead arranger, book manager or bookrunner on the cover page of this Agreement or any amendment, modification or supplement of
this Agreement.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06 or any other form
(including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Attributable Indebtedness” means, with respect to any Person on any date, (a) in respect of any Capital Lease, the
capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the remaining lease payments under the relevant
lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease, (c) in respect of any Securitization Transaction, the outstanding principal amount
of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Borrower in its reasonable judgment and (d) in respect of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease).
“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the
fiscal year ended June 30, 2013, and the related consolidated statements of income or operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, including the notes thereto.
“Auto Borrow Agreement” has the meaning specified in Section 2.04(g).
“Available Amount” means, as at any date, the difference of (a) the aggregate Net Cash Proceeds received after the
Closing Date and on or prior to such date from Equity Issuances minus (b) the aggregate amount of Investments made since the Closing Date pursuant to Section 8.02(p)(ii) minus (c) the aggregate amount of
Restricted Payments made since the Closing Date pursuant to Section 8.06(f) minus (d) the aggregate amount of prepayments of Subordinated Indebtedness and senior unsecured Indebtedness made since the Closing Date pursuant to
Section 8.12(a)(iv).
“Availability Period” means, with respect to the Revolving Commitments, the period from
and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06 and (c) the date of termination of the commitment of each
Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.
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“Bank of America” means Bank of America, N.A. and its successors.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2
of 1%, (b) the Prime Rate and (c) the Eurodollar Rate plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 7.02.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan or any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, means any such day that is also a London Banking Day.
“Businesses” has the meaning specified in Section 6.09(a).
“Call Options” means call options, purchase rights or similar rights with respect to the Equity Interests of the Borrower
purchased by the Borrower substantially concurrent with the issuance of Indebtedness that is convertible into Equity Interests of the Borrower (including the Convertible Subordinated Notes) (including any rights of any counterparty to put any shares
of Equity Interests to the Borrower thereunder or any similar rights thereunder).
“Capital Lease” means, as applied to
any Person, any lease of any property by that Person as lessee that is required to be accounted for as a capital lease on the balance sheet of that Person.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more
of the L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuer 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 the L/C Issuer. “Cash Collateral” shall have a meaning correlative
to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents”
means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof)
having maturities of not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits, bankers’ acceptances and certificates of deposit of (i) any Revolving Lender, (ii) any domestic commercial bank
of recognized standing having capital and surplus in excess of $100,000,000 or (iii) any bank, trust company or national banking association whose short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof or from
Moody’s is at least P-2 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than twelve months from the date of acquisition, (c) commercial paper and variable or
fixed rate
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notes issued by any Approved Bank (or by the parent company thereof) and maturing within twelve months of the date of acquisition; (d) commercial paper issued by, or guaranteed by, any
domestic company and rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s and maturing within twelve months of the date of acquisition; (e) variable or fixed rate notes and
other debt instruments issued by, or guaranteed by, any domestic company and rated AAA (or the equivalent thereof) or better by S&P or Aaa (or the equivalent thereof) or better by Moody’s and maturing within twelve months of the date of
acquisition; (f) repurchase agreements entered into by any Person with a bank or trust company (including any Revolving Lender) or recognized securities dealer having capital and surplus in excess of $100,000,000 for securities of the type
described in clauses (a) and (b) above in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount
of the repurchase obligations, (g) investments which are, unless the Administrative Agent otherwise consents, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act
of 1940 which are administered by any Revolving Lender or reputable financial institutions having capital of at least $100,000,000 and which have a credit rating of A-1 or higher by S&P, or an equivalent credit rating by Moody’s or Fitch,
(h) auction rate securities having an auction date within one year after the date of acquisition which have a long term credit rating A or higher by S&P, or an equivalent credit rating by Moody’s or Fitch, (i) investments in
private placements which (i) seek to preserve principal, (ii) maintain a high degree of liquidity, (iii) invest in a diversified group of money market instruments and other short-term obligations, in each case which have the highest
credit rating by any two of S&P, Moody’s and Fitch, and (iv) generally maintain a dollar-weighted average portfolio maturity of 90 days or less, although the average portfolio maturity may extend to 120 days in the event of material
redemption activity and (j) with respect to any Foreign Subsidiary, (i) direct obligations of, or obligations fully guaranteed by, any country (other than the United States) or any agency or instrumentality thereof; (ii) certificates
of deposit issued by, or bankers’ acceptances of or promissory notes of, or time deposits or bearer note deposits with, any Approved Foreign Bank; (iii) commercial paper issued by any Approved Foreign Bank and maturing within twelve months
of the date of acquisition; (iv) repurchase agreements entered into by any Person with a bank or trust company (including any Approved Foreign Bank) or recognized securities dealer having capital and surplus in excess of $100,000,000 for direct
obligations issued by or fully guaranteed by any country (other than the United States) or any agency or instrumentality thereof in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations; (v) commercial paper issued by, or guaranteed by, any foreign company and rated A-1 (or the equivalent thereof) or better by S&P
or P-1 (or the equivalent thereof) or better by Moody’s (or, if neither S&P nor Moody’s shall rate such obligations at such time, by any nationally recognized rating agency in the relevant country) and maturing within twelve months of
the date of acquisition; (vi) variable or fixed rate notes and other debt instruments issued by, or guaranteed by, any foreign company and rated AAA (or the equivalent thereof) or better by S&P or Aaa (or the equivalent thereof) or better
by Moody’s (or, if neither S&P nor Moody’s shall rate such obligations at such time, by any nationally recognized rating agency in the relevant country) and maturing within twelve months of the date of acquisition; and
(vii) investments, classified in accordance with GAAP as current assets, in money market investment programs which are administered by reputable financial institutions having capital of at least $100,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing subdivisions (i) through (vi).
“Change in Law”
means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental Authority or (c) 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, (i) the Dodd Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and
(ii) all
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requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.”
“Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all Equity Interests that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of fifty percent (50%) or more of the Equity Interests of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of the Borrower on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent
governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the
case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual solicitation of proxies or consents for the
election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors).
“Closing Date” means October 21, 2010.
“Collateral” means a collective reference to all property with respect to which Liens in favor of the Administrative Agent,
for the benefit of itself and the other holders of the Obligations, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.
“Collateral Documents” means a collective reference to the Security Agreement and other security documents as may be executed
and delivered by any Loan Party pursuant to the terms of Section 7.13.
“Commitment” means, as to each
Lender, the Revolving Commitment of such Lender and/or the Term Loan Commitment of such Lender.
“Commitment Fee” has the
meaning specified in Section 2.09(a).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C
§ 1 et seq.), as amended from time to time, and any successor statute.
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“Compliance Certificate” means a certificate substantially in the form of
Exhibit 7.02.
“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such
period, (ii) the provision for federal, state, local and foreign Taxes based on income, profits or capital payable or accrued for such period, including, without limitation, franchise and similar taxes and foreign withholding taxes paid or
accrued during such period including penalties and interest related to such taxes or arising from any tax examinations, (iii) the amount of depreciation and amortization expense for such period (including amortization of intangible assets and
deferred financing fees or costs), (iv) extraordinary or non-recurring charges, expenses or losses, (v) other non-cash charges, expenses or losses, (vi) non-cash stock option and other equity-based compensation expenses,
(vii) fees and expenses relating to this Agreement, (viii) any net loss for such period attributable to the early extinguishment of Indebtedness or to hedging obligations or other derivative instruments, (ix) any net loss from
disposed, abandoned or discontinued operations, (x) the non-cash portion of straight-line rent expense to the extent not representing a future cash charge and (xi) fees and expenses incurred or any amortization thereof in connection with
any acquisition, investment, recapitalization, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such
transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case, to the extent not
otherwise prohibited hereunder minus (c) the following to the extent added in calculating such Consolidated Net Income: (i) extraordinary or non-recurring income or gains; (ii) any net gain for such period attributable to the
early extinguishment of Indebtedness or to hedging obligations or other derivative instruments; and (iii) any net gain from disposed, abandoned or discontinued operations. Notwithstanding the forgoing, (i) Consolidated EBITDA shall be
calculated without giving effect to the non-cash effects of purchase accounting or similar adjustments required or permitted by GAAP in connection with any Permitted Acquisitions and (ii) Consolidated EBITDA shall be calculated on a Pro Forma
Basis to the extent set forth in Section 1.03(c) to give effect to, among other things, any Permitted Acquisition occurring after June 30, 2010.
“Consolidated EBITDAR” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal
to the sum of (a) Consolidated EBITDA for such period plus (b) rent and lease expense for such period.
“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDAR
for the period of the four fiscal quarters most recently ended to (b) Consolidated Fixed Charges for the period of the four fiscal quarters most recently ended.
“Consolidated Fixed Charges” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount
equal to the sum of (a) the cash portion of Consolidated Interest Charges for such period plus (b) the cash portion of rent and lease expense for such period plus (c) Consolidated Scheduled Funded Debt Payments for such
period plus (d) Restricted Payments made under Section 8.06(d) (other than all Restricted Payments made since the end of the most recent Applicable Period most recently ended prior to the date of such Restricted Payment if,
at the time any such Restricted Payment is made, the Consolidated Total Leverage Ratio recomputed as of the end of such Applicable Period is less than 3.0:1.0 on a Pro Forma Basis after giving effect to such Restricted Payment plus all other
Restricted Payments made since the end of such Applicable Period). In calculating Consolidated Fixed Charges for any measurement period ending prior to the first anniversary of the Fifth Amendment Closing Date, the cash portion of Consolidated
Interest Charges and the Consolidated Scheduled Funded Debt Payments included in Consolidated Fixed Charges for such measurement period shall be calculated for the period from the Fifth Amendment Closing Date to the end of the measurement period and
annualized.
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“Consolidated Funded Indebtedness” means Funded Indebtedness of the Borrower and
its Subsidiaries on a consolidated basis.
“Consolidated Interest Charges” means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium payments, the amortization of original issue discount, fees, charges and related expenses in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, plus (b) the portion of rent expense with respect to such period under Capital Leases that is
treated as interest in accordance with GAAP plus (c) the implied interest component of Synthetic Leases with respect to such period.
“Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, net income
(excluding extraordinary gains and losses) for such period.
“Consolidated Scheduled Funded Debt Payments” means for any
period for the Borrower and its Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on Consolidated Funded Indebtedness. For purposes of this definition, “scheduled payments of principal” (a) shall be
determined without giving effect to any reduction of such scheduled payments resulting from the application of any voluntary or mandatory prepayments made during the applicable period (except to the extent such voluntary or mandatory prepayment is
applied to the remaining principal installments of the applicable Indebtedness on a pro rata basis, in which case commencing in the fiscal quarter after the fiscal quarter in which such voluntary or mandatory prepayment is made “scheduled
payments of principal” shall be determined giving effect to any reduction of such scheduled payments resulting from the application of such voluntary or mandatory prepayment), (b) shall be deemed to include the Attributable Indebtedness,
(c) shall not include any voluntary prepayments under, or mandatory prepayments required by, Section 2.05 and (d) shall not include any scheduled principal payments on the Convertible Subordinated Notes.
“Consolidated Senior Secured Leverage Ratio” means as of any date of determination, the ratio of (a) Consolidated Funded
Indebtedness (other than (i) Subordinated Indebtedness and (ii) Funded Indebtedness that is not secured by a Lien on any property of the Borrower or any Subsidiary) as of such date to (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended.
“Consolidated Total Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.
“Contractual Obligation” means, as to any Person, any provision of any written agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 20% or more of the securities
having ordinary voting power for the election of directors, managing general partners or the equivalent.
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“Convertible Subordinated Note Indenture” means the Indenture dated as of
May 16, 2007 between the Borrower, as Issuer, and the Bank of New York, as Trustee, relating to the Convertible Subordinated Notes.
“Convertible Subordinated Notes” means the 2.125% Convertible Senior Subordinated Notes Due 2014 issued by the Borrower.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Debt Issuance” means the issuance by the Borrower or any Subsidiary of any Indebtedness other than Indebtedness permitted
under Section 8.03.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes
an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default
Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus
2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate for Revolving Loans that are Eurodollar Rate Loans plus 2% per annum.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all
or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s
good faith 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 (ii) pay to the
Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the
date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend or expect 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 Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which
condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent
or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or
(ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors 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
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Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses
(a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date
established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such
determination.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory
itself is the subject of any Sanction.
“Discounted Optional Prepayment” has the meaning specified in
Section 2.05(b).
“Discounted Optional Prepayment Notice” has the meaning specified in
Section 2.05(b).
“Disposition” or “Dispose” means the sale, transfer, license, lease or
other disposition of any property by the Borrower or any Subsidiary, including any Sale and Leaseback Transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding (a) the disposition of inventory in the ordinary course of business; (b) the disposition of machinery and equipment no longer used or useful in the conduct of business of the Borrower and its
Subsidiaries in the ordinary course of business; (c) the disposition of property to the Borrower or any Subsidiary; provided, that if the transferor of such property is a Loan Party then the transferee thereof must be a Loan Party;
(d) the disposition of accounts receivable in connection with the collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower
and its Subsidiaries; (f) the sale or disposition of Cash Equivalents for fair market value; (g) any Recovery Event; (h) any merger, dissolution, liquidation or consolidation permitted by Section 8.04 (other than
Section 8.04(e)); (i) dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and
similar binding arrangements; and (j) the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that the property received in such exchange is of a value equivalent to the value of
the property exchanged. For purposes of clarification, (x) a Restricted Payment shall not constitute a Disposition and (y) an Investment shall not constitute a Disposition.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any state of the United States or the District
of Columbia.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections
11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
“Environmental Laws” means any and all federal, state, local, foreign and other applicable statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
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franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or
based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other
ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of
determination.
“Equity Issuance” means any issuance by the Borrower of its Equity Interests to any Person, other than
(a) any issuance of its Equity Interests pursuant to the exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the conversion of any debt securities to equity or the conversion of any class of equity
securities to any other class of equity securities, (c) any issuance of options or warrants relating to its Equity Interests and (d) any issuance of its Equity Interests as consideration for a Permitted Acquisition.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with a Loan Party within the
meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of a Loan Party or
any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the institution by the PBGC of proceedings to terminate a Pension Plan; (e) any event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the determination by a Governmental Authority that any Pension Plan is considered an at-risk plan
or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA; or (g) the imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate.
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“Eurodollar Rate” means
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered
Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published by Bloomberg (or such other commercially available source providing such quotations as may be designated by the
Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period; and
(b) for any interest calculation with
respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at approximately 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day;
provided that (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the
approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied as
otherwise reasonably determined by the Administrative Agent and (ii) if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of
“Eurodollar Rate”.
“Event of Default” has the meaning specified in Section 9.01.
“Excluded Property” means, with respect to any Loan Party, (a) any owned or leased real property or any other interest
in real property; (b) any personal property (including, without limitation, motor vehicles) in respect of which the attachment or perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by
appropriate evidence of the Lien being filed in any of the United States Copyright Office, the United States Patent and Trademark Office, the Canadian Copyright Office and the Canadian Patent and Trademark Office, unless requested by the
Administrative Agent or the Required Lenders after the Closing Date; (c) any property if the grant of a security interest therein is prohibited by applicable Law; (d) any property if the grant of a security interest therein requires any
consent, approval, license or authorization of any Governmental Authority unless (i) such consent, approval, license or authorization has been received or (ii) such requirement is rendered ineffective pursuant to the Uniform Commercial
Code or any other applicable Law (it being understood that (i) if any such consent, approval, license or authorization of any Governmental Authority is required, then the applicable Loan Party agrees to use commercially reasonable efforts to
obtain such consent, approval, license or authorization and (ii) for purposes of clarification, this clause (d) shall not exclude accounts receivable arising from amounts due by the U.S. Government or any department or agency thereof);
(e) Equity Interests in any Person that is not a Wholly Owned Subsidiary to the extent the grant of a security interest in such Equity Interests is prohibited by the Organization Documents of such Person; (f) any property which, subject to
the terms of Section 8.09, is subject to a Lien of the type described in Section 8.01(i), (q), (v) or (x) pursuant to documents which prohibit such Loan Party from granting any other Liens in
such property; (g) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto
(other than the Borrower or any Subsidiary) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable
12
Law, other than proceeds and receivables thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition; (h) the Equity
Interests of any Foreign Subsidiary to the extent not required to be pledged to secure the Obligations pursuant to Section 7.13(a); (i) any property as to which the Administrative Agent and the Borrower agree that the cost of
obtaining a security interest in such property or perfecting a security interest in such property is excessive in relation to the benefit to the Lenders of the security to be afforded thereby; and (j) any property to the extent the granting of
a security interest in such property would result in material adverse tax consequences to the Borrower or any of its Subsidiaries as determined by the Administrative Agent in its sole discretion.
“Excluded Subsidiary” means (a) any Foreign Subsidiary Holding Company, (b) each Domestic Subsidiary that is a
Subsidiary of a Foreign Subsidiary and (c) each Domestic Subsidiary to the extent that (i) such Domestic Subsidiary is prohibited by any applicable Law from guaranteeing the Obligations or (ii) any consent, approval, license or
authorization of any Governmental Authority is required in order for such Domestic Subsidiary to become a Guarantor and such consent, approval, license or authorization has not been received (if any consent, approval, license or authorization of any
Governmental Authority is required in order for any Domestic Subsidiary to become a Guarantor, then such Domestic Subsidiary agrees to use commercially reasonable efforts to obtain such consent, approval, license or authorization).
“Excluded Swap Obligations” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a
portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of
the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity
Exchange Act (determined after giving effect to Section 4.09 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other
Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap
Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of
any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, or as a result of a present or
former connection between the Lender and the jurisdiction imposing such tax (other than a present or former connection arising as a direct result of entering into, or being a party to or enforcing its rights under any of the Loan Documents),
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction described in clause (a), (c) any backup withholding tax that is required by the Internal Revenue Code to be withheld from
amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 11.13),
any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or
(ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law after the date the Foreign Lender becomes a party hereto) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that
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such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a)(ii) or (c), (e) any United States withholding tax that is imposed pursuant to FATCA and (f) interest and penalties with respect to the taxes referred to in clauses
(a) through (e).
“Existing Indebtedness” has the meaning specified in Section 5.01.
“Existing Letters of Credit” means those Letters of Credit outstanding on the Fifth Amendment Closing Date and identified on
Schedule 2.03.
“Facilities” has the meaning specified in Section 6.09(a).
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or
successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the
Internal Revenue Code and any intergovernmental agreements entered into in connection with the foregoing.
“Federal Funds
Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“Fee Letter” means each of the following (individually or collectively, as the context may require): (a) the letter
agreement dated October 18, 2013 among the Borrower, the Arrangers, Bank of America, JPMorgan Chase Bank, N.A., Wells Fargo Bank, National Association, Royal Bank of Canada, SunTrust Bank and PNC Bank, National Association and (b) the
letter agreement dated October 18, 2013 among the Borrower, MLPFS and Bank of America.
“Fifth Amendment Closing
Date” means November 15, 2013.
“First Tier Foreign Subsidiaries” has the meaning specified in
Section 7.13(a)(ii).
“Fitch” means Fitch, Inc and any successors thereto.
“Foreign Acquisition” means an Acquisition of a Person that is not organized under the laws of a state of the United States
of America or the District of Columbia (or, in the case of an Acquisition of Property of a Person, Property that is not located in the United States of America).
“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is
resident for Tax purposes (including such a Lender when acting in the capacity of the L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
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“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Foreign Subsidiary Holding Company” means any Subsidiary which is a Domestic Subsidiary substantially all of the assets
of which consist of the Equity Interests of one or more Foreign Subsidiaries.
“Foreign Subsidiary Indebtedness” has the
meaning specified in Section 8.03.
“FRB” means the Board of Governors of the Federal Reserve System of the
United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C
Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized
in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders.
“Fund” means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funded Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations, whether current or long-term, for
borrowed money (including the Obligations (other than obligations under Swap Contracts)) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all purchase money indebtedness;
(c) the principal portion of all obligations under conditional sale or other title retention agreements relating to property
purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);
(d) the maximum amount available to be drawn under standby letters of credit, bankers’ acceptances, bank guaranties and
similar instruments;
(e) all obligations in respect of the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business);
(f) the Attributable Indebtedness of Capital Leases, Sale and
Leaseback Transactions, Synthetic Leases and Securitization Transactions;
(g) all obligations to purchase, redeem, retire,
defease or otherwise make any payment prior to the Maturity Date in respect of any Equity Interests, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends;
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(h) all Funded Indebtedness of others secured by (or for which the holder of such
Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been
assumed; provided that for purposes hereof, the outstanding amount any Funded Indebtedness under this clause (h) shall be deemed to be the lesser of the principal amount of such Funded Indebtedness and the fair market value of the
property subject to any such Lien;
(i) all Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (h) above of another Person; and
(j) all Funded Indebtedness of the types referred to in
clauses (a) through (i) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, except to the extent that
Funded Indebtedness is expressly made non-recourse to or otherwise limits the liability of such Person;
provided that Funded
Indebtedness shall not include (A) trade and other ordinary course payables and accrued expenses arising in the ordinary course of business, (B) prepaid or deferred revenue arising in the ordinary course of business, (C) purchase
price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller of such asset, (D) purchase price holdbacks arising in connection with an
Acquisition until such purchase price holdbacks become a liability on the balance sheet of such Person in accordance with GAAP and (E) earn-out obligations until such obligations become a liability on the balance sheet of such Person in
accordance with GAAP.
“GAAP” means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or such other principles as may be approved by a
significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other
obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation,
or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or
in part), or (b) any Lien on any assets of
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such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which
such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means, collectively, (a) each Domestic Subsidiary identified as a “Guarantor” on the
signature pages hereto, (b) each Person that joins as a Guarantor pursuant to Section 7.12 or otherwise, (c) with respect to (i) obligations under any Swap Contract between any Subsidiary and any Lender or Affiliate of a
Lender that is permitted to be incurred pursuant to Section 8.03(d) and obligations under any Treasury Management Agreement between any Subsidiary and any Lender or Affiliate of a Lender, the Borrower, and (ii) the payment and
performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower and (d) the successors and permitted assigns of the foregoing; provided that, for the avoidance doubt, no
Excluded Subsidiary shall be required to become a Guarantor hereunder unless the Borrower, in its discretion, causes such Subsidiary to become a Guarantor on or after the date hereof in accordance with the terms hereof.
“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders pursuant to
Article IV.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
“Honor Date” has the meaning set forth in
Section 2.03(c).
“Incremental Facilities” has the meaning specified in Section 2.16(a).
“Incremental Facility Amendment” has the meaning specified in Section 2.16(a).
“Incremental Facility Commitment” means a commitment to an Incremental Facility.
“Incremental Revolving Facility” has the meaning specified in Section 2.16(a).
“Incremental Revolving Increase” has the meaning specified in Section 2.16(a).
“Incremental Term Facility” has the meaning specified in Section 2.16(a).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) the maximum amount available to be drawn under commercial letters of credit, surety bonds and similar instruments;
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(d) all Guarantees with respect to outstanding Indebtedness of the types
specified in clauses (a) and (b) above of any other Person; and
(e) all Indebtedness of the types referred to in
clauses (a) through (c) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, unless such Indebtedness
is expressly made non-recourse to or otherwise limits the liability of such Person.
“Indemnified Taxes” means Taxes
other than Excluded Taxes.
“Indemnitees” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Initial Revolving Facility” means the revolving facility established pursuant to Section 2.01(a).
“Intercompany Indebtedness” means any Indebtedness owing by a Loan Party to another Loan Party.
“Interest Payment Date” means (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to
such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective Business Days that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date.
“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is
disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months (or, if available to all Lenders making or maintaining the applicable Eurodollar Rate Loan, nine or twelve months) thereafter
(subject to availability), as selected by the Borrower in its Loan Notice; provided that:
(a) any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business
Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
“Interim Financial Statements” means the unaudited consolidated financial statements of the Borrower and its Subsidiaries for
the fiscal quarter ending September 30, 2013, including balance sheets and statements of income or operations, shareholders’ equity and cash flows.
“Internal Revenue Code” means the Internal Revenue Code of 1986.
“Investment” means, as to any Person, any acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Equity Interests of another Person, (b) a loan, advance or
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capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, or (c) an Acquisition.
For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested less any returns on such Investment (not to exceed the original amount invested), but without adjustment for subsequent increases or decreases in
the value of such Investment.
“IP Rights” has the meaning specified in Section 6.17.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document,
agreement and instrument entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit 7.12 executed and delivered by a
Domestic Subsidiary in accordance with the provisions of Section 7.12.
“Joint Venture” means any Person in
which the Borrower or any Subsidiary owns Equity Interests other than any such Person that is a Subsidiary.
“Laws”
means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the force of law.
“L/C Advance” means, with respect to each
Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been
reimbursed on the date when made or refinanced as a Borrowing of Revolving Loans.
“L/C Credit Extension” means, with
respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means each of (a) Bank of America in its capacity as issuer of Letters of Credit hereunder, (b) any
other Revolving Lender that upon request of the Borrower agrees to issue one or more Letters of Credit hereunder and (c) any successor issuer of Letters of Credit hereunder. The term “L/C Issuer” when used with respect to a Letter of
Credit or the L/C Obligations relating to a Letter of Credit shall refer to the L/C Issuer that issued such Letter of Credit.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all
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purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the
ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lender Participation Notice” has the meaning specified in Section 2.05(b).
“Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that
becomes a “Lender” in accordance with this Agreement and their successors and permitted assigns and, as the context requires, includes the Swing Line Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender
or such affiliate. Unless the context otherwise requires, each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit” means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the
form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” means the day that is three days
prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of
Credit Fee” has the meaning specified in Section 2.03(h).
“Letter of Credit Sublimit” means an
amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $25 million. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other),
charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of
way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Liquidity” means the sum of (a) all cash and Cash Equivalents of the Borrower and its Subsidiaries on such date that
(i) do not appear (or would not be required to appear) as “restricted” on a consolidated balance sheet of the Borrower and its Subsidiaries and (ii) are not subject to a Lien of the type described in Sections 8.01(p),
(q), (s), (u), (v) and (y)) plus (b) availability under the Aggregate Revolving Commitments plus (c) the aggregate amount available to be borrowed by the Borrower or any Subsidiary
under any revolving credit facility or similar financing arrangement (other than the Credit Agreement).
“Loan” means an
extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Loan, Swing Line Loan or the Term Loan.
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“Loan Documents” means this Agreement, each Note, each Issuer Document, each
Joinder Agreement, the Collateral Documents, any Auto Borrow Agreement and the Fee Letter (but excluding Swap Contracts and Treasury Management Agreements).
“Loan Notice” means a notice of (a) a Borrowing of Revolving Loans or the Term Loan, (b) a conversion of Loans from
one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit 2.02 or such other form as may be approved by the
Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent) appropriately completed and signed by a Responsible Officer of the Borrower.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
“Master Agreement” has the meaning specified in the definition of “Swap
Contract.”
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, properties, liabilities or financial condition of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent and the Lenders under the
Loan Documents, taken as a whole; (c) a material impairment of the ability of any Loan Party to perform its material obligations under any material Loan Document to which it is a party; or (d) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any material Loan Document to which it is a party.
“Material
Domestic Subsidiary” means any Domestic Subsidiary that accounts for greater than (a) five percent (5%) of total revenues of the Borrower and its Subsidiaries on a consolidated basis for the Applicable Period or
(b) five percent (5%) of total assets of the Borrower and its Subsidiaries on a consolidated basis as of the end of the Applicable Period; provided that if at any time all Domestic Subsidiaries that are not Guarantors account in the
aggregate for greater than (i) ten percent (10%) of Consolidated EBITDA for the Applicable Period, (ii) ten percent (10%) of total revenues of the Borrower and its Subsidiaries on a consolidated basis for the Applicable Period
or (iii) ten percent (10%) of total assets of the Borrower and its Subsidiaries on a consolidated basis as of the end of the Applicable Period, then the Borrower shall cause one or more of such Domestic Subsidiaries to become
Guarantors pursuant to Section 7.12 such that immediately thereafter the remaining Domestic Subsidiaries that are not Guarantors shall not exceed any of the thresholds in clauses (i), (ii) or (iii) of this proviso.
“Material Foreign Subsidiary” means any Foreign Subsidiary that accounts for greater than (a) five percent (5%) of
total revenues of the Borrower and its Subsidiaries on a consolidated basis for the Applicable Period or (b) five percent (5%) of total assets of the Borrower and its Subsidiaries on a consolidated basis as of the end of the
Applicable Period; provided that if at any time all Foreign Subsidiaries that do not meet any of the thresholds in clauses (a), (b) and (c) above account in the aggregate for greater than (i) ten percent (10%) of
Consolidated EBITDA for the Applicable Period, (ii) ten percent (10%) of total revenues of the Borrower and its Subsidiaries on a consolidated basis for the Applicable Period or (iii) ten percent (10%) of total assets of
the Borrower and its Subsidiaries on a consolidated basis as of the end of the Applicable Period, then the Borrower shall designate in writing to the Administrative Agent one or more of such Foreign Subsidiaries as Material Foreign Subsidiaries such
that immediately thereafter the remaining Foreign Subsidiaries that do not meet any of the thresholds in clauses (a) and (b) above shall not exceed any of the thresholds in clauses (i), (ii) or (iii) of this proviso.
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“Material Indebtedness” means any Indebtedness (other than Indebtedness arising
under the Loan Documents, Indebtedness arising under Swap Contracts and intercompany Indebtedness) having an aggregate principal amount of more than the Threshold Amount.
“Material Subsidiary” means any Material Domestic Subsidiary or any Material Foreign Subsidiary.
“Maturity Date” means June 1, 2020; provided, however, that if such date is not a Business Day, the
Maturity Date shall be the next preceding Business Day.
“Merger Agreement” means that certain Agreement and Plan of
Merger dated October 8, 2013 by and among the Borrower, CACI, Inc.-Federal, CACI Acquisition II, Inc., Six3 Systems Holdings, LLC and the Target.
“MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.
“MNPI” has the meaning specified in Section 2.05(b).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit
account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 102% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time,
(b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to 102% of the Outstanding
Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion not to exceed 102% of the obligation being secured by such Cash Collateral.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any
Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including any Loan Party or any ERISA
Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net
Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the Borrower or any Subsidiary in respect of any Disposition, Recovery Event or Debt Issuance net of (a) fees, expenses and costs incurred in connection
therewith (including, without limitation, legal, accounting and investment banking fees, and sales commissions, in each case paid to a Person who is not the Borrower or an Affiliate of the Borrower), (b) Taxes paid or payable as a result
thereof, (c) in the case of any Disposition or any Recovery Event, the amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the related property and (d) the
amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (b) above) (i) associated with the assets that are the subject of such event and
(ii) retained by the Borrower or any of the Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash
Proceeds of such event occurring on the date of such reduction; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by the Borrower or any Subsidiary in any Disposition, Recovery Event or Debt Issuance.
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“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting
Lender at such time.
“Note” has the meaning specified in Section 2.11(a).
“Notice of Prepayment” means a notice of prepayment with respect to a Loan, which shall be in a form approved by the
Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.
“Obligations” means all advances to, and debts, liabilities and obligations of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding. The foregoing shall also include (a) all obligations under any Swap Contract between the Borrower or any Subsidiary and any Lender or Affiliate of a Lender (or any Person that was a Lender or an Affiliate of a Lender
on the date such Person entered into such Swap Contract) that is permitted to be incurred pursuant to Section 8.03(d) and (b) all obligations under any Treasury Management Agreement between the Borrower or any Subsidiary and any
Lender or Affiliate of a Lender (or any Person that was a Lender or an Affiliate of a Lender on the date such Person entered into such Treasury Management Agreement); provided that (a) obligations of the Borrower or any of its
Subsidiaries under any such Swap Contract or any such Treasury Management Agreement shall be secured and guaranteed pursuant to the Collateral Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed
and (b) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under any such Swap Contract or Treasury Management Agreement; provided,
further that “Obligations” of a Guarantor shall exclude any Excluded Swap Obligations of such Guarantor.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Offered Loans” has the meaning specified in Section 2.05(b).
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and
(c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such
entity.
“Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, other than (for the
avoidance of doubt) Excluded Taxes.
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“Outstanding Amount” means (a) with respect to any Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.
“Participant” has the meaning specified in Section 11.06(d).
“Participant Register” has the meaning specified in Section 11.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions
(including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Internal Revenue Code and Section 302 of ERISA, each as in
effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is
maintained or is contributed to by any Loan Party and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal Revenue Code.
“Permitted Acquisition” means an Investment consisting of an Acquisition by the Borrower or any Subsidiary, provided
that (a) no Event of Default shall have occurred and be continuing or would result from such Acquisition; (b) the property acquired (or the property of the Person acquired) in such Acquisition is used or useful in the same or a similar
line of business of providing IT products and services and professional services as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof); (c) in the case of the Acquisition
of Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition; (d) the aggregate cash and non-cash consideration (including Indebtedness assumed
by the Borrower or any Subsidiary, the good faith estimate by the Borrower of the maximum amount of any deferred purchase price obligations (including earn-out payments) payable by the Borrower or any
Subsidiary and Equity Interests issued by the Borrower to the seller as consideration) during the term of this Agreement for Foreign Acquisitions shall not exceed the greater of (i) $100 million and (ii) five percent (5%) of total
assets of the Borrower and its Subsidiaries on a consolidated basis as of the end of the Applicable Period (provided that the Acquisition of TechniGraphics, Inc. shall not count against the limitation in this clause (d)); (e) the Borrower shall
have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to such Acquisition on a Pro Forma Basis (i) the Loan Parties shall be in compliance with the financial covenants set forth in
Section 8.11 recomputed as of the end of the Applicable Period and (ii) the Consolidated Total Leverage Ratio recomputed as of the end of the Applicable Period shall be less than 4.0:1.0; and (f) immediately after giving effect
to such Acquisition, there shall be at least $50 million of availability existing under the Aggregate Revolving Commitments.
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“Permitted Liens” means, at any time, Liens in respect of property of the
Borrower or any Subsidiary permitted to exist at such time pursuant to the terms of Section 8.01.
“Permitted Sale
Leaseback Transaction” means any Sale Leaseback Transaction consummated by the Borrower or any of the Subsidiaries after the Closing Date, provided that any such Sale Leaseback Transaction that is not between (a) a Loan Party
and another Loan Party or (b) a Subsidiary that is not a Loan Party and another Subsidiary that is not a Loan Party shall be consummated for fair value as determined at the time of consummation in good faith by the Borrower or such Subsidiary.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of
Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Platform” has the meaning specified in Section 7.02.
“Prime Rate” means the rate of interest in effect for such day as publicly announced from time to time by Bank of America as
its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the
public announcement of such change.
“Pro Forma Basis” means, with respect to any transaction, that for purposes of
calculating the financial covenants set forth in Section 8.11, such transaction shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction for which the
Borrower has delivered financial statements on or prior to the Closing Date and/or is required to deliver financial statements pursuant to Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to any
Disposition or Recovery Event, (i) income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such
transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the Applicable Period and (b) with respect to any Acquisition, (i) income statement and cash flow statement
items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow
statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by financial statements or other information reasonably
satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person or property acquired) in connection with such transaction and any Indebtedness of the Person or
property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.
“Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the Borrower containing reasonably
detailed calculations of the financial covenants set forth in Section 8.11 recomputed as of the end of the Applicable Period after giving effect to the applicable transaction on a Pro Forma Basis.
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“Proposed Discounted Prepayment Amount” has the meaning specified in
Section 2.05(b).
“Public Lender” has the meaning specified in Section 7.02.
“Qualified ECP Guarantor” shall mean, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies
at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under § 1a(18)(A)(v)(II) of the Commodity
Exchange Act.
“Qualifying Lenders” has the meaning specified in Section 2.05(b).
“Qualifying Loans” has the meaning specified in Section 2.05(b).
“Quoted Rate” means, with respect to any Quoted Rate Swing Line Loan, the fixed or floating percentage rate per annum, if
any, offered by the Swing Line Lender and accepted by the Borrower in accordance with the provisions hereof; provided that from the date that any Revolving Lender funds a participation interest in such Quoted Rate Swing Line Loan, the Quoted
Rate for such Quoted Rate Swing Line Loan shall be a rate equal to the Base Rate plus the Applicable Margin for Revolving Loans that are Base Rate Loans.
“Quoted Rate Swing Line Loan” means any Swing Line Loan that bears interest at the Quoted Rate.
“Recovery Event” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any
property of the Borrower or any Subsidiary.
“Refinancing Facility” means an Incremental Facility (or portion thereof)
which refinances one or more tranches of term loans and/or revolving facilities (including revolving loans thereunder) under this Agreement; provided that the portion of any Incremental Facility that is deemed a Refinancing Facility shall be
limited to the amount equal to the aggregate principal amount of the term loans and/or revolving facilities being refinanced plus unpaid accrued interest and premium (if any) thereon and underwriting discounts, fees, commissions and expenses
incurred in connection therewith.
“Register” has the meaning specified in Section 11.06(c).
“Related Parties” means, 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” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the
thirty-day notice period has been waived.
“Request for Credit Extension” means (a) with respect to a Borrowing,
conversion or continuation of Loans (other than a Swing Line Loan), a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan (other than a Swing Line Loan
advanced pursuant to any Auto Borrow Agreement), a Swing Line Loan Notice.
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“Required Lenders” means, as of any date of determination, Lenders holding in
the aggregate more than 50% of (a) the unfunded Commitments and the outstanding Loans (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed
“held” by such Lender for purposes of this definition) or (b) if the Commitments have been terminated, the outstanding Loans (with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition). The unfunded Commitments of, and the outstanding Loans, L/C Obligations and participations therein held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Lenders” means,
as of any date of determination, Lenders holding in the aggregate more than 50% of (a) the unfunded Revolving Commitments and the outstanding Revolving Loans (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) or (b) if the Revolving Commitments have been terminated, the outstanding Revolving Loans (with the aggregate
amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition). The unfunded Revolving Commitments of, and the
outstanding Revolving Loans, L/C Obligations and participations therein held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Responsible Officer” means the chief executive officer, president, chief financial officer, vice president, vice president
finance, treasurer, assistant treasurer or controller of a Loan Party, in each case or similar title, and, solely for purposes of the delivery of incumbency certificates, the secretary or any assistant secretary of a Loan Party and, solely for
purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable
Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the
Administrative Agent, each Responsible Officer will provide an incumbency certificate and appropriate authorization documentation, in form and substance reasonably satisfactory to the Administrative Agent.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to
any Equity Interests of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such Equity Interests or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof).
“Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to
Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such
Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.16(a), as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.
“Revolving Facilities” has the meaning
specified in Section 2.16(a).
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“Revolving Lender” means at any time a Lender that holds (a) a Revolving
Commitment or (b) if the Revolving Commitments have been terminated, outstanding Revolving Loans, Swing Line Loans, L/C Obligations and participations therein.
“Revolving Loan” has the meaning specified in Section 2.01(a).
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The
McGraw-Hill Companies, Inc. and any successor thereto.
“Sale and Leaseback
Transaction” means, with respect to any Person, any arrangement, directly or indirectly, whereby such Person shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or
lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“Sanctions” means any international economic sanction administered or enforced by the United States Government, including
OFAC, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal
functions.
“Securitization Transaction” means, with respect to any Person, any financing transaction or series of
financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease
payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.
“Security
Agreement” means the security and pledge agreement dated as of the Closing Date executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of the Loan Parties.
“Six3 Acquisition” means the acquisition by the Borrower, directly or indirectly, of all of the outstanding share capital of
the Target, pursuant to and in accordance with the Merger Agreement.
“Six3 Acquisition Costs” means (i) the
purchase price for the Six3 Acquisition, (ii) the refinancing or repayment of third party indebtedness for borrowed money of the Target and its Subsidiaries and (iii) fees, costs and expenses incurred in connection with the Six3
Acquisition and the financing therefor.
“Six3 Facilities” means the portion of the Term Loan and the Revolving Loans
necessary to finance the Six3 Acquisition Costs on the Fifth Amendment Closing Date.
“Solvent” or
“Solvency” means that (a) the Fair Value of the assets of the Borrower and its Subsidiaries taken as a whole exceeds their Liabilities, (b) the Present Fair Salable Value of the assets of the Borrower and its Subsidiaries
taken as a whole exceeds their Liabilities; (c) the Borrower and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (d) the Borrower and its
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Subsidiaries taken as a whole will be able to pay their Liabilities as they mature. For purposes of this definition of “Solvent” or “Solvency”, the terms below shall have the
following definitions:
(i) “Fair Value” means the amount at which the assets (both tangible and intangible), in
their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with
neither being under any compulsion to act.
(ii) “Present Fair Salable Value” means the amount that could be
obtained by an independent willing seller from an independent willing buyer if the assets of the Borrower and its Subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the
sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
(iii)
“Liabilities” means the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the date of determination, determined in accordance
with GAAP consistently applied.
(iv) “Will be able to pay their Liabilities as they mature” means, for the
period from the date hereof through the Maturity Date, the Borrower and its Subsidiaries taken as a whole will have sufficient assets and cash flow to pay their Liabilities as those liabilities mature or (in the case of contingent Liabilities)
otherwise become payable, in light of business conducted or anticipated to be conducted by the Loan Parties as reflected in the projected financial statements and in light of the anticipated credit capacity.
(v) “Do not have Unreasonably Small Capital” means that the Borrower and its Subsidiaries taken as a whole do not
have unreasonably small capital to conduct their business, it being understood that “unreasonably small capital” depends upon the nature of the particular business or businesses conducted or to be conducted and is based on the needs and
anticipated needs for capital of the business conducted or anticipated to be conducted by the Loan Parties as reflected in the projected financial statements and in light of the anticipated credit capacity.
“Specified Loan Party” means, at any time, any Loan Party that is not an “eligible contract participant” under the
Commodity Exchange Act (determined prior to giving effect to Section 4.09).
“Specified Merger Agreement
Representations” means such of the representations made by the Target with respect to the Target and its subsidiaries in the Merger Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or its
Affiliate) has the right to terminate its (or its Affiliate’s) obligations under the Merger Agreement, or decline to consummate the Six3 Acquisition, as a result of a breach of such representations in the Merger Agreement.
“Specified Representations” means the representations and warranties made in Sections 6.01(a) (as to
valid existence) and (b)(ii), the first clause of Section 6.02, Section 6.02(a), Section 6.04, Section 6.14, Section 6.18 (after giving effect to the consummation of the Six3
Acquisition, the borrowings under the Six3 Facilities and the payment of the Six3 Acquisition Costs), Section 6.19 (but only with respect to (i) assets with respect to which a lien may be perfected by the filing of a financing
statement under the Uniform Commercial Code, (ii) the pledge and perfection of security interests in Equity Interests of the Borrower’s material, wholly-owned Domestic Subsidiaries (excluding delivery of stock certificates of the Target
and its Subsidiaries to the extent not received from the seller under the Merger Agreement) and (iii) other assets a security interest in which can be provided and perfected after the Borrower’s use of commercially reasonable efforts to do
so or without undue burden or expense) and Section 6.21.
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“Subordinated Indebtedness” means Indebtedness of the Borrower or any Subsidiary
which by its terms is subordinated in right of payment to the Obligations in a manner and to an extent acceptable to the Administrative Agent.
“Subsidiary” of a Person means (a) a corporation, partnership, joint venture, limited liability company or other
business entity of which a majority of the shares of Equity Interests entitled to vote for members of the board of directors or equivalent governing body is at the time beneficially owned, directly, or indirectly through one or more intermediaries,
or both, by such Person, and (b) any other corporation, partnership, joint venture, limited liability company or other business entity that is consolidated with the Borrower under GAAP. Unless otherwise specified, all references herein to a
“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Swap
Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligations” means
with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and
(b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Swing Line Lender”
means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line
Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a
Borrowing of Swing Line Loans pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit 2.04 or such other form as approved by the Administrative Agent (including any form on an electronic platform or
electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
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“Swing Line Sublimit” means an amount equal to the lesser of (a) $75
million and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Synthetic Lease” means any synthetic lease, Tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP.
“Target” means Six3 Systems Holdings II, Inc., a Delaware corporation.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding),
assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan” has the meaning specified in Section 2.01(b).
“Term Loan Commitment” means, as to each Lender, its obligation to make its portion of the Term Loan to the Borrower on the
Fifth Amendment Closing Date (including, as applicable, the deemed funding of a portion of the Term Loan to the extent funded prior to the Fifth Amendment Closing Date and from and after the Closing Date) pursuant to Section 2.01(b), in
the principal amount set forth opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the Term Loan Commitments of all of the Lenders as in effect on the Fifth Amendment Closing Date is EIGHT HUNDRED THIRTY-ONE
MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($831,250,000).
“Threshold Amount” means $25 million.
“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and all
L/C Obligations.
“Treasury Management Agreement” means any agreement governing the provision of treasury or cash
management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
“Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“Warrants” means any call options, warrants, purchase rights or similar rights with respect to the Equity Interests of the
Borrower sold by the Borrower substantially concurrent with the issuance of Indebtedness that is convertible into Equity Interests of the Borrower (including the Convertible Subordinated Notes).
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“Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at
the time owned by the Borrower directly or indirectly through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Borrower.
1.02 Other Interpretive Provisions.
With
reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) 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 (including any Organization Document) 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 or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words
“hereto”, “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not
to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such
references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation 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 assets and properties, tangible and intangible, real and personal, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms; Calculation of Financial Covenants on a Pro Forma Basis.
(a) Generally. Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of
any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial
liabilities shall be disregarded.
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(b) Changes in GAAP. In the event that any Accounting Change (defined below) occurs and
such Accounting Change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then at the request of the Borrower or the Administrative Agent, the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after
such Accounting Change as if such Accounting Change had not been made (no fee shall be payable to the Administrative Agent, Arrangers or Lenders in connection with any such amendment; provided that the Borrower shall reimburse the
Administrative Agent for all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent) in connection with any such amendment). Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred. “Accounting Change” refers to any change in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants, the Public Company Accounting Oversight Board or, if applicable, the SEC.
(c) Calculation of Financial Covenants on a Pro Forma Basis. Notwithstanding the above, the parties hereto acknowledge and agree that
all calculations of the financial covenants in Section 8.11 (including for purposes of determining the Applicable Rate) shall be made on a Pro Forma Basis with respect to any Acquisition, Disposition or Recovery Event occurring after
June 30, 2010 and during the applicable period. All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis
or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.
1.04 Rounding.
Any financial ratios required to be
maintained by the Loan Parties pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Times of Day; Rates.
Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar
Rate” or with respect to any comparable or successor rate thereto.
1.06 Letter of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of
Credit in effect at such time; provided, however, that, except with respect to the calculation of Letter of Credit fees pursuant to Section 2.03(h) and the fronting fee pursuant to Section 2.03(i), with respect
to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the
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amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in
effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
Revolving Loans and Term Loan.
(a) Revolving Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate principal amount not to exceed at any time
outstanding the amount of such Lender’s Revolving Commitment; provided, however, that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01(a), prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as further
provided herein.
(b) Term Loan. Subject to the terms and conditions set forth herein, each Lender severally agrees to make its
portion of a term loan (the “Term Loan”) in a single advance to the Borrower in Dollars on the Fifth Amendment Closing Date (including, as applicable, the deemed funding of a portion of the Term Loan to the extent funded prior to
the Fifth Amendment Closing Date and from and after the Closing Date) in an amount equal to such Lender’s Term Loan Commitment. Amounts repaid on the Term Loan may not be reborrowed. The Term Loan may consist of Base Rate Loans or Eurodollar
Rate Loans, or a combination thereof, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of
a Loan Notice. Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of
any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type
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of a Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, or, in the case
of any continuation of any Eurodollar Rate Loan, shall be automatically continued as, a Eurodollar Rate Loan with an Interest Period of one month. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in
any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan.
(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage
of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to or continuation of Eurodollar Rate Loans
with an Interest Period of one month as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative
Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit Extension,
Section 5.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that
if, on the date the Loan Notice with respect to a Borrowing of Revolving Loans is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings and second, shall be made available to the Borrower as provided above.
(c) During the existence of an Event of Default,
the Required Lenders may require that no Loans may be converted or continued as Eurodollar Rate Loans.
(d) The Administrative Agent shall
promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrower and the Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same
Type, there shall not be more than (i) 10 Interest Periods in effect with respect to Revolving Loans, (ii) 10 Interest Periods in effect with respect to the Term Loan, and (iii) a maximum number of Interest Periods as agreed by the
Administrative Agent in effect with respect to Incremental Term Facilities.
(f) Notwithstanding anything to the contrary in this
Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless
settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.
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2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of
the Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the
account of the Borrower or any Subsidiary, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders
severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations
shall not exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any
Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit
would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the date 12 months after the Maturity Date, unless all
the Revolving Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the
L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate
one or more policies of the L/C Issuer applicable to letters of credit generally;
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(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000;
(D) such Letter of Credit is to be denominated in
a currency other than Dollars;
(E) any Revolving Lender at that time is a Defaulting Lender, unless the L/C Issuer has
entered into arrangements satisfactory to the L/C Issuer (in its sole discretion) and the Borrower to eliminate the L/C Issuer’s Fronting Exposure, if any (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting
Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has Fronting Exposure, as it may elect in its sole discretion; or
(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing
thereunder.
(iiv) Reserved.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by the L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article X included the L/C Issuer with respect to such
acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and
Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the
Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the
L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
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presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably request. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents
and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has
received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained
in Article V shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter into the
applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole
discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent
any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the date 12 months
after the Maturity Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or
in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent,
any Lender or any Loan Party that one or more of the applicable conditions specified in Section 5.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(iv) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion,
agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by
the L/C Issuer, the
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Borrower shall not be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the
following sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the
foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of
days after such drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days
before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or any Loan Party that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Honor
Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Revolving
Loans that are Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the
Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than
1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Lender that so makes funds available shall be deemed to have made a
Revolving Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.
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(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Revolving Loans that are Base Rate Loans because the conditions set forth in Section 5.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.03.
(iv) Until each Revolving Lender funds its Revolving
Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 5.02 (other than delivery by the Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the
amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any
Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender
such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest
thereon
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(whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its
Applicable Percentage (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) thereof in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay
to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and
to repay each L/C Borrowing 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:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at
any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such 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; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the
Borrower or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;
(v) honor of a demand
for payment presented electronically even if such letter of Credit requires that demand be in the form of a draft;
(vi)
any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is
authorized by the UCC or the ISP, as applicable.
(vii) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a
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trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(viii) 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 Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the L/C Issuer.
(f) Role
of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly
required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of
their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders, the
Required Revolving Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful or grossly negligent
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer 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, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other
commercially reasonable means of communicating with a beneficiary.
(g) Applicability of ISP; Limitation of Liability. Unless
otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the
foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order,
or practice that is required or permitted to be applied to any Letter of
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Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP, or in the decisions, opinions
practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services Association (BAFT – IFSA), or the Institute of International Banking Law and
Practice, whether or not any Letter of Credit chooses such law or practice.
(h) Letter of Credit Fees. The Borrower shall pay to
the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate for Revolving
Loans that are Eurodollar Rate Loans times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Maturity Date and thereafter on demand; and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to
be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(i)
Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Fee
Letter, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges shall be due and payable promptly following demand and shall be nonrefundable.
(j) Conflict with Issuer
Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of
any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of
Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
2.04 Swing Line Loans.
(a) Swing Line
Facility. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.04, may in its sole discretion subject to the terms of
any Auto Borrow Agreement make loans (each such loan, a “Swing Line Loan”) to the Borrower in Dollars from time to time on any Business Day during the
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Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with
the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and
provided further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan or a Quoted Rate Swing Line Loan, as the Borrower may elect.
Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to
the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures.
Subject to the terms of any Auto Borrow Agreement, each Borrowing of Swing Line Loans shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or
(B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000, (ii) the requested borrowing date,
which shall be a Business Day and (iii) whether such Swing Line Loan shall be a Base Rate Loan or a Quoted Rate Swing Line Loan. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender
will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing)
of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 3:00 p.m. on the date of the proposed Borrowing of Swing Line
Loans (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article V is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of
its Swing Line Loan available to the Borrower.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be
made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice). The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the
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Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving
Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with
Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in the
relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line
Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that
such Lender may have against the Swing Line Lender, the Borrower, any Subsidiary or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing
Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage (appropriately adjusted, in the case of interest payments, to reflect the period of time during which
such Lender’s risk participation was funded) thereof in the same funds as those received by the Swing Line Lender.
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(ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion),
each Revolving Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to
the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of
this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the
Borrower for interest on the Swing Line Loans. Until each Revolving Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of
any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f)
Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
(g) Auto Borrow Arrangement. In order to facilitate the borrowing of Swing Line Loans, the Borrower and the Swing Line Lender may
mutually agree to, and are hereby authorized to, enter into an auto borrow agreement in form and substance reasonably satisfactory to the Borrower, Administrative Agent and the Swing Line Lender (the “Auto Borrow Agreement”)
providing for the automatic advance by the Swing Line Lender of Swing Line Loans under the conditions set forth in the Auto Borrow Agreement, subject to the conditions set forth herein. At any time an Auto Borrow Agreement is in effect,
Borrowings of Swing Line Loans may be made in accordance with the Auto Borrow Agreement. For purposes of determining the Total Revolving Outstandings at any time during which an Auto Borrow Agreement is in effect, the Outstanding Amount of all
Swing Line Loans shall be deemed to be the sum of the Outstanding Amount of Swing Line Loans at such time plus the maximum amount available to be borrowed under such Auto Borrow Agreement at such time. Notwithstanding anything herein to the
contrary, the Borrower shall be permitted to amend or terminate the Auto Borrow Agreement at any time without notice to or consent of the Administrative Agent or the Lenders (but subject to any amendment or termination requirements set forth in the
Auto Borrow Agreement).
2.05 Prepayments.
(a) Voluntary Prepayments of Loans.
(i) Revolving Loans and Term Loan. The Borrower may, upon delivery of a Notice of Prepayment from the Borrower to the
Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans and the Term Loan in whole or in part without premium or penalty; provided that (A) such Notice of Prepayment shall be received by the
Administrative Agent not later than 11:00 a.m. (1) two Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall
be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); (C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or
a whole multiple of $100,000 in excess thereof (or, if less, the entire principal
46
amount thereof then outstanding); and (D) any prepayment of the Term Loan shall be applied to the remaining principal amortization payments of the Term Loan in the manner directed by the
Borrower (and absent such direction, to the remaining principal amortization payments in direct order of maturity). Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.15, each such prepayment shall be applied to the Loans of the Lenders in accordance with
their respective Applicable Percentages.
(ii) Swing Line Loans. Subject to the terms of any Auto Borrow Agreement,
the Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 (or, if less,
the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.
Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of
prepayment under this Section 2.05(a) if such prepayment would have resulted from a refinancing of this Agreement, which refinancing shall not be consummated or otherwise shall be delayed (provided any such rescission or postponement
shall be subject to Section 3.05).
(b) Discounted Optional Prepayments.
(i) Notwithstanding anything to the contrary contained in this Agreement (including Section 2.05(a),
Section 2.12(a) or Section 2.13), the Borrower shall have the right at any time and from time to time to prepay the Term Loan at a discount to the par value of the Term Loan and on a non pro rata basis (each a
“Discounted Optional Prepayment”); provided that
(A) no Default shall have occurred and be
continuing or would result from such Discounted Optional Prepayment;
(B) no Discounted Optional Prepayment shall be made
with the proceeds of any Revolving Loan;
(C) such Discounted Optional Prepayment shall be offered to all Lenders holding
the Term Loan on a pro rata basis (it being understood that the determination by a Lender that holds a portion of the Term Loan whether to accept such offer shall be in such Lender’s sole discretion);
(D) the Borrower shall deliver to the Administrative Agent a certificate stating that at the time of such Discounted Optional
Prepayment the Borrower does not have any material non-public information (“MNPI”) that either (x) has not been disclosed
47
to the Lenders (other than those which have elected not to receive such MNPI) prior to such time or (y) would reasonably be expected to have a material effect upon, or otherwise be material
to, the market price of the Term Loan or a Lender’s decision to participate in such Discounted Optional Prepayment;
(E) the undiscounted aggregate principal amount of the Term Loan prepaid with Discounted Optional Prepayments during the term
of this Agreement shall not exceed $100 million; and
(F) after giving effect to such Discounted Optional Prepayment, there
shall be at least $50 million of Liquidity.
(ii) To the extent the Borrower seeks to make a Discounted Optional
Prepayment, the Borrower shall provide written notice to the Administrative Agent substantially in the form of Exhibit 2.05-1 hereto (each, a “Discounted Optional Prepayment Notice”) that the Borrower desires to prepay the
Term Loan in the aggregate principal amount specified therein (each, a “Proposed Discounted Prepayment Amount”) at a discount to the par value of the Term Loan. The Proposed Discounted Prepayment Amount of the Term Loan shall not be
less than $5,000,000. The Discounted Optional Prepayment Notice shall further specify with respect to the proposed Discounted Optional Prepayment: (A) the Proposed Discounted Prepayment Amount, (B) a discount range (which may be a single
percentage) selected by the Borrower with respect to such proposed Discounted Optional Prepayment (representing the percentage of par of the principal amount of the Term Loan to be prepaid) (the “Discount Range”) and (C) the
date by which Lenders are required to indicate their election to participate in such proposed Discounted Optional Prepayment which shall be at least five Business Days following the date of the Discounted Optional Prepayment Notice (the
“Acceptance Date”).
(iii) Upon receipt of a Discounted Optional Prepayment Notice in accordance with
Section 2.05(b)(ii), the Administrative Agent shall promptly notify each Lender that holds a portion of the Term Loan. On or prior to the Acceptance Date, each such Lender may specify by written notice substantially in the form of
Exhibit 2.05-2 hereto (each, a “Lender Participation Notice”) to the Administrative Agent (A) a minimum price (the “Acceptable Price”) within the Discount Range (for example, 80% of the par value of the
Term Loan) and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of the Term Loan which such Lender is willing to permit a Discounted Optional Prepayment at the Acceptable Price
(“Offered Loans”). Based on the Acceptable Prices and principal amounts of the Term Loan specified by the Lenders in the applicable Lender Participation Notices, the Administrative Agent, in consultation with the Borrower, shall
determine the applicable discount for the Term Loan (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Borrower if the Borrower has selected a single percentage pursuant to
Section 2.05(b)(ii) for the Discounted Optional Prepayment or (B) otherwise, the lowest Acceptable Price at which the Borrower can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of
Offered Loans commencing with the Offered Loans with the lowest Acceptable Price); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Price, the Applicable
Discount shall be the highest Acceptable Price specified by the Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Voluntary Discounted Prepayment and have
Qualifying Loans (as defined below). Any Lender that holds a portion of the Term Loan whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted
Optional Prepayment of the Term Loan at any discount to their par value within the Applicable Discount.
48
(iv) The Borrower shall make a Discounted Optional Prepayment by prepaying the
Term Loan (or portion thereof) offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Price that is equal to or lower than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount;
provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such
amounts in each case calculated by applying the Applicable Discount, the Borrower shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding
requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the
Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrower shall prepay all Qualifying Loans. The Term Loan prepaid by the Borrower pursuant to this Section 2.05(b) shall
be applied to the remaining principal amortization payments of the Term Loan of the selling Lenders in the manner directed by the Borrower (and absent such direction, to the remaining principal amortization payments in direct order of maturity).
(v) Each Discounted Optional Prepayment shall be made within four Business Days of the Acceptance Date (or such other date
as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (but subject to Section 3.05), upon
irrevocable notice (provided that such notice may be conditioned on receiving proceeds from any refinancing (but shall remain subject to Section 3.05)) substantially in the form of Exhibit 2.05-3 hereto (each a “Notice of
Discounted Prepayment”), delivered to the Administrative Agent no later than 11:00 a.m. three Business Days prior to the date of such Discounted Optional Prepayment, which notice shall specify the date and amount of the Discounted Optional
Prepayment and the Applicable Discount determined by the Administrative Agent. Upon receipt of any Notice of Discounted Prepayment the Administrative Agent shall promptly notify each relevant Lender thereof. If any Notice of Discounted Prepayment is
given, the amount specified in such notice shall be due and payable to the applicable Lenders, subject to the Applicable Discount on the Term Loan, on the date specified therein together with accrued interest (on the par principal amount) to but not
including such date on the amount prepaid.
(vi) To the extent not expressly provided for herein, each Discounted Optional
Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding and calculation of Applicable Discount in accordance with Section 2.05(b)(iii)) established by the Administrative Agent in consultation
with the Borrower.
(vii) Following a Discounted Optional Prepayment, no interest shall accrue from and after the
applicable prepayment date on the Term Loan purchased by the Borrower on such date and such purchased Term Loan shall be deemed cancelled or retired for all purposes and no longer outstanding (and may not be resold by the Borrower) for all purposes
of this Agreement and all other Loan Documents (notwithstanding any provisions herein or therein to the contrary), including (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document,
(B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document, (C) the providing of any rights to the Borrower as a Lender under this Agreement or any other Loan
Document and (D) the determination of Required Lenders.
49
(c) Mandatory Prepayments of Loans.
(i) Revolving Commitments. If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, the Borrower shall promptly prepay Revolving Loans and/or Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower
shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate
Revolving Commitments then in effect.
(ii) Dispositions and Recovery Events. The Borrower shall prepay the Term
Loan in an aggregate amount equal to 100% of the Net Cash Proceeds of any Disposition or Recovery Event to the extent (A) such Net Cash Proceeds are not reinvested in property that is useful in the business of the Borrower and its Subsidiaries
within 365 days of the date of such Disposition or Recovery Event and (B) the aggregate amount of such Net Cash Proceeds that are not reinvested in accordance with clause (A) exceeds $100 million during the term of this Agreement (it being
understood that such prepayment shall be due immediately upon the expiration of such 365 day period); provided that if such Net Cash Proceeds are received by any Foreign Subsidiary in connection with any Disposition or Recovery Event by a
Foreign Subsidiary, then the mandatory prepayment required by this Section 2.05(c) shall be limited to the amount of such prepayment that could not reasonably be expected to cause adverse Tax consequences to the Borrower.
(iii) Debt Issuances. Immediately upon receipt by the Borrower or any Subsidiary of the Net Cash Proceeds of any Debt
Issuance, the Borrower shall prepay the Term Loan in an aggregate amount equal to 100% of such Net Cash Proceeds.
(iv)
Application of Mandatory Prepayments. All amounts required to be paid pursuant to this Section 2.05(c) shall be applied as follows:
(A) with respect to all amounts prepaid pursuant to Section 2.05(c)(i), first, ratably to the L/C Borrowings
and the Swing Line Loans, second, to the outstanding Revolving Loans, and, third, to Cash Collateralize the remaining L/C Obligations;
(B) with respect to all amounts prepaid pursuant to Section 2.05(c)(ii) or (iii), to the Term Loan (in each
case to the next four scheduled quarterly principal amortization payments and thereafter to the remaining scheduled principal amortization payments on a pro rata basis).
Within the parameters of the applications set forth above, prepayments shall be applied first to Base Rate Loans and then to Eurodollar Rate
Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(c) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.
(v) Declined Prepayments. One or more holders of the Term Loan may
decline to accept a mandatory prepayment under Section 2.05(c)(ii) in which case such declined prepayment shall be retained by the Borrower.
50
(vi) [Reserved].
2.06 Termination or Reduction of Aggregate Revolving Commitments.
The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently
reduce the Aggregate Revolving Commitments to an amount not less than the Aggregate Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations; provided that (a) any such notice shall be received by the Administrative
Agent not later than 12:00 noon three Business Days prior to the date of termination or reduction, (b) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and
(c) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Commitments, such sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Revolving Lenders of any such notice of termination or reduction of the Aggregate Revolving Commitments. Subject to Section 2.15(a)(v), any reduction
of the Aggregate Revolving Commitments shall be applied to the Revolving Commitment of each Revolving Lender according to its Applicable Percentage. All fees accrued with respect thereto until the effective date of any termination of the Aggregate
Revolving Commitments shall be paid on the effective date of such termination. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Aggregate Revolving Commitments if such termination would have
resulted from a refinancing of this Agreement, which refinancing shall not be consummated or otherwise shall be delayed (provided any such rescission or postponement shall be subject to Section 3.05).
2.07 Repayment of Loans.
(a)
Revolving Loans. The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.
(b) Swing Line Loans. Subject to the terms of any Auto Borrow Agreement, the Borrower shall repay each Swing Line Loan on the earlier
to occur of (i) the date ten Business Days after such Swing Line Loan is made and (ii) the Maturity Date.
(c) Term Loan.
The Borrower shall repay the outstanding principal amount of the Term Loan in installments on the dates and in the amounts set forth in the table below (as such installments may hereafter be adjusted as a result of prepayments made pursuant to
Section 2.05), unless accelerated sooner pursuant to Section 9.02:
|
|
|
| Payment Dates |
|
Principal Amortization
Payment |
| September 30, 2015 |
|
$9,741,210.94 |
| December 31, 2015 |
|
$9,741,210.94 |
| March 31, 2016 |
|
$9,741,210.94 |
| June 30, 2016 |
|
$9,741,210.94 |
| September 30, 2016 |
|
$9,741,210.94 |
| December 31, 2016 |
|
$9,741,210.94 |
| March 31, 2017 |
|
$9,741,210.94 |
| June 30, 2017 |
|
$9,741,210.94 |
| September 30, 2017 |
|
$9,741,210.94 |
| December 31, 2017 |
|
$9,741,210.94 |
| March 31, 2018 |
|
$9,741,210.94 |
| June 30, 2018 |
|
$9,741,210.94 |
| September 30, 2018 |
|
$19,482,421.88 |
| December 31, 2018 |
|
$19,482,421.88 |
| March 31, 2019 |
|
$19,482,421.88 |
| June 30, 2019 |
|
$19,482,421.88 |
| September 30, 2019 |
|
$19,482,421.88 |
| December 31, 2019 |
|
$19,482,421.88 |
| March 31, 2020 |
|
$19,482,421.88 |
| Maturity Date for the
Term Loan |
|
Unpaid principal balance of
the Term Loan |
51
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan (including any Swing Line Loan that is a Base Rate Loan) shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan that is a Quoted Rate Swing Line Loan shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Quoted Rate applicable thereto.
(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such past-due amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required
Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.
52
2.09 Fees.
In addition to certain fees described in subsections (h) and (i) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent, for the account of each Revolving Lender
(subject to Section 2.15(a)(ii) in the case of any Defaulting Lender) in accordance with its Applicable Percentage, a commitment fee (the “Commitment Fee”) equal to the product of (i) the Applicable Rate
times (ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (A) the Outstanding Amount of Revolving Loans and (B) the Outstanding Amount of L/C Obligations, subject to adjustment as
provided in Section 2.15. The Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The Commitment Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was
in effect. For purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining the unused portion of the Aggregate Revolving Commitments.
(b) Fee Letter. The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts
fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(b) If, as a result of any restatement of or other adjustment to
the financial statements of the Borrower or for any other reason, the Borrower or the Lenders (in consultation with the Borrower) determine that (i) the Consolidated Total Leverage Ratio as calculated by the Borrower as of any applicable date
was inaccurate and (ii) a proper calculation of the Consolidated Total Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for
the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the
Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period
over the amount of interest and fees actually paid for such period. Notwithstanding the foregoing, the Borrower shall only be obligated to make payments under this Section 2.10(b) upon demand therefor, and failure to make any such
payment on account of lack of demand shall, for the
53
avoidance of doubt, not result in a Default or Event of Default hereunder. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be,
under Section 2.03(c)(iii), 2.03(h) or 2.08(b) or under Article IX. The Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Revolving Commitments and the repayment of
all other Obligations hereunder.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to
the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such Lender’s
Loans in addition to such accounts or records. Each such promissory note shall be in the form of Exhibit 2.11 (a “Note”). Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount
and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any
conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest
error.
2.12 Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected
in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such
Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02
54
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance
upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest
rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds 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.
A notice of the Administrative Agent to any Lender or
the Borrower with respect to any amount owing under this subsection (b) shall be presumptively correct, absent manifest error.
(c)
Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made
available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The
obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan,
to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for
the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
55
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
2.13 Sharing of Payments by Lenders.
Except as otherwise contemplated herein, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the
Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in
Section 2.14 or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant,
other than an assignment to the Borrower or any Subsidiary (as to which the provisions of this Section shall apply).
Each Loan Party
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
2.14 Cash Collateral.
(a) Certain Credit Support Events. If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit
and such drawing has resulted in an L/C Borrowing, (ii) as of the Maturity Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 9.02(c)
or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one Business Day (in all other cases) following any request by the Administrative Agent or the L/C Issuer provide
Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.15(a)(iv) and any Cash
Collateral provided by the Defaulting Lender).
56
(b) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting
Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in
all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.14(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 or the L/C Issuer as herein provided (other than
Liens permitted under Section 8.01(m)), or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower or the relevant Defaulting Lender 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. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked,
non-interest bearing deposit accounts at the Administrative Agent or with another financial institution acceptable to the Borrower and the Administrative Agent. The Borrower shall pay on demand therefor from time to time all customary account
opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c)
Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15 or 9.02 in respect of Letters of
Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, 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 otherwise be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations
shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its
assignee following compliance with Section 11.06(b)(vi))) or (ii) the good faith determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided, however, (x) any
such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and
(y) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.15 Defaulting Lenders.
(a)
Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’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 “Required Lenders” and Section 11.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the
Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to
Section 11.08 shall be applied at
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such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such
Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting
Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of
Credit issued under this Agreement, in accordance with Section 2.14; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, the L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Event of Default exists, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of
which such Defaulting Lender 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 Section 5.02 were satisfied or waived,
such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender
until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.15(a)(iv). Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid
to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(1) No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) for any period during
which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender for any period during which that Lender is a Defaulting Lender).
(2) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a
Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.14.
(3) With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause
(B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has
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been reallocated to such Non-Defaulting Lender pursuant to clause (b) below, (y) pay to the L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the
extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting
Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s
Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver
or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure
following such reallocation.
(v) Termination of Defaulting Lender Commitment. The Borrower may, with the prior
written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), terminate the unused amount of the Revolving Commitment of a Defaulting Lender upon not less than three Business Days’ prior notice to the
Administrative Agent (which will promptly notify the Lenders thereof), and in such event the provisions of Section 2.15(a)(ii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender that is a
Lender under this Agreement (in each case whether on account of principal, interest, fees or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the
L/C Issuer, the Swing Line Lender or any Lender may have against such Defaulting Lender.
(vii) Cash Collateral,
Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable
Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set
forth in Section 2.14.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swing Line Lender
and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders 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 and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to
Section 2.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that
Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.
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2.16 Incremental Facilities; Extensions.
(a) This Agreement and the other Loan Documents may be amended (or amended and restated) at any time after the Fifth Amendment Closing Date to
add one or more tranches of term loans (each an “Incremental Term Facility”), add one or more incremental revolving credit facility tranches (each, an “Incremental Revolving Facility” and together with the Initial
Revolving Facility, the “Revolving Facilities”) and/or increase commitments under any Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility, each Incremental
Revolving Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent
and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(i) the aggregate principal amount of all Incremental Facilities shall not exceed the sum of (A) $400 million plus
(B) the maximum amount, if any, such that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (assuming for purposes of this calculation that all Revolving Facilities (including any Incremental Revolving
Facility or Incremental Revolving Increase) are fully drawn) (1) in the case of any Incremental Facility other than a Refinancing Facility, the Consolidated Senior Secured Leverage Ratio recomputed as of the end of the Applicable Period would
not be greater than 2.75:1.0 and (2) in the case of any Incremental Facility, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 recomputed as of the end of the Applicable Period;
provided that for purposes of this sub-clause (B) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating the requirements set forth in sub-clauses (B)(1) and (B)(2) above are
satisfied;
(ii) no Default shall exist on the effective date of any Incremental Facility or would exist after giving
effect to any Incremental Facility;
(iii) no existing Lender shall be under any obligation to provide any Incremental
Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(iv) each Incremental Facility Commitment shall be in a minimum principal amount of $10 million and in integral multiples of $5
million in excess thereof (or such lesser amounts as the Administrative Agent may agree);
(v) each Person providing an
Incremental Facility Commitment shall qualify as an Eligible Assignee;
(vi) the Borrower shall deliver to the
Administrative Agent:
(A) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a
Responsible Officer of such Loan Party (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (2) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (x) the representations and warranties of each Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier date, and (y) no Default exists; and
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(B) customary opinions of legal counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(vii) the Administrative Agent shall have received documentation from each Person providing an Incremental Facility Commitment
evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(viii) in the case of any Incremental Revolving Increase with respect to a Revolving Facility, if any revolving loans are
outstanding under such Revolving Facility on the date of such increase, (A) each Lender providing such Incremental Revolving Increase shall make revolving loans under such Revolving Facility, the proceeds of which shall be applied by the
Administrative Agent to prepay revolving loans of the existing Lenders under such Revolving Facility, in an amount necessary such that after giving effect thereto the outstanding revolving loans under such Revolving Facility are held ratably among
all the Lenders holding commitments under such Revolving Facility, and (B) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of revolving loans of existing Lenders;
(ix) in the case of an Incremental Term Facility:
(A) the final maturity date for such Incremental Term Facility shall not be earlier than the latest maturity date of the Term
Loan or any other Incremental Term Facility;
(B) the weighted average life to maturity for such Incremental Term Facility
shall not be shorter than the then remaining weighted average life to maturity for the Term Loan or any other Incremental Term Facility; and
(C) such Incremental Term Facility shall share ratably in any prepayments of the Term Loan and any previously incurred
Incremental Term Facility pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the Term Loan and any previously incurred Incremental Term Facility) and shall have ratable voting rights as the Term
Loan and any previously incurred Incremental Term Facility (or otherwise provide for more favorable voting rights for the Term Loan and any previously incurred Incremental Term Facility);
(x) in the case of an Incremental Revolving Facility:
(A) the final maturity of such Incremental Revolving Facility shall not be earlier than the latest maturity date of the other
Revolving Facilities;
(B) such Incremental Revolving Facility shall not be subject to any scheduled principal amortization
payments or scheduled or mandatory commitment reductions prior to the latest maturity date of the other Revolving Facilities;
(C) such Incremental Revolving Facility may provide for the issuance of Letters of Credit for the account of the Borrower and
its Subsidiaries on terms substantially equivalent to the terms applicable to Letters of Credit under the existing Revolving Facilities or the making of swing line loans to the Borrower on terms substantially equivalent to the terms applicable to
Swing Line Loans under the existing Revolving Facilities; and
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(D) such Incremental Revolving Facility shall have ratable voting rights as the
other Revolving Facilities (or otherwise provide for more favorable voting rights for the then outstanding Revolving Facilities);
(xi) in the case of an Incremental Revolving Increase with respect to a Revolving Facility, such Incremental Revolving Increase
shall be on the exact same terms and pursuant to the exact same documentation applicable to such Revolving Facility; and
(xii) subject to the foregoing clauses, the interest rate margins, final maturity date and weighted average life to maturity
applicable to any Incremental Revolving Facility or Incremental Term Facility shall be determined by the Borrower and the Persons providing such Incremental Revolving Facility or Incremental Term Facility thereunder.
The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be
entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders
hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent
deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.16. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each
Incremental Facility Amendment. In addition, if so provided in the Incremental Facility Amendment for an Incremental Revolving Facility and with the consent of each L/C Issuer, participation in Letters of Credit under the existing Revolving
Facilities shall be reallocated from Lenders holding revolving commitments under the existing Revolving Facilities to Lenders holding revolving commitments under such Incremental Revolving Facility in accordance with the terms of such Incremental
Facility Amendment.
(b) The Borrower may, by written notice to the Administrative Agent from time to time (and with the consent of the
Administrative Agent, not to be unreasonably withheld), make one or more offers (each, a “Loan Modification Offer”) to all the Revolving Lenders or all of the Lenders holding the Term Loan to make one or more amendments or
modifications to (i) allow the maturity and scheduled amortization (if any) of the Loans of the accepting Lenders to be extended and (ii) increase the Applicable Rate and/or fees payable with respect to the Loans and Commitments (if any)
of the accepting Lenders (“Permitted Amendments”) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of
the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective. Permitted Amendments shall become effective only with respect to the Loans and/or Commitments of the Lenders that accept the
applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and/or Commitments as to which such Lender’s acceptance has been
made. The Borrower, each other Loan Party and each Accepting Lender shall execute and deliver to the Administrative Agent such documentation (a “Loan Amendment”) as the Administrative Agent shall reasonably specify to evidence the
acceptance of the Permitted Amendments and the terms and conditions thereof, and the Loan Parties shall also deliver such corporate resolutions, opinions and other documents as reasonably requested by the Administrative Agent. The Administrative
Agent shall promptly notify each Lender as to the effectiveness of each Loan Amendment. Each of the parties hereto hereby agrees that (i) upon the effectiveness of any Loan Amendment, this Agreement shall be deemed amended to the extent (but
only
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to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders as to which
such Lenders’ acceptance has been made and (ii) any applicable Lender who is not an Accepting Lender may be replaced by the Borrower in accordance with Section 11.13.
ARTICLE III
TAXES, YIELD
PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes – Obligation to Withhold: Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document
shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If applicable Laws require any Loan Party or the Administrative Agent to withhold or deduct any Tax, such Tax shall be
withheld or deducted in accordance with such Laws as determined by such Loan Party or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.
(ii) If the Loan Parties or the Administrative Agent shall be required by the Internal Revenue Code to withhold or deduct any
Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based
upon the information and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the
Internal Revenue Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Loan Parties shall be increased as necessary so that after any required withholding or
the making of all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, any Lender or the L/C Issuer, as the case may be, receives an amount equal to the sum it would have
received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Loan Parties. Without limiting the
provisions of subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.
(c) Tax Indemnification.
(i) Without limiting the provisions of subsection (a) or (b) above, the Loan Parties shall, and do hereby indemnify
the Administrative Agent, each Lender and the L/C Issuer, and shall make payment in respect thereof within thirty days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted by the Loan Parties or the Administrative Agent (without duplication of any gross-up amount paid by a Loan Party pursuant to
Section 3.01(a)) or paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
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Authority, other than any such amounts arising as a result of the gross negligence or willful misconduct of the Administrative Agent, Lender or L/C Issuer, as determined by a final and
nonappealable judgment of a court of competent jurisdiction. The Loan Parties shall also, and do hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within ten days after demand therefor, for any amount which a
Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection; provided that prior to making any such demand on the Loan Parties the Administrative Agent
agrees to exercise its right pursuant to clause (ii) of this subsection to set off and apply all amounts paid by the Loan Parties to the Administrative Agent for the account of such Lender or the L/C Issuer, as the case may be, during the
period of 30 days following the date such Lender or the L/C Issuer, as the case may be, fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A certificate, prepared in good faith as to the amount
of any such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive
absent manifest error.
(ii) Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and shall make
payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer (but only to the extent that any Loan Party has not already
indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes
attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Loan Party 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 Lender by the Administrative Agent shall be conclusive absent manifest
error. Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Documents
against any amount due to the Administrative Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a
Lender or the L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
(d)
Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority, as provided in this
Section 3.01, the Borrower shall deliver (or cause the applicable Loan Party to deliver) to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may
be.
(e) Status of Lenders: Tax Documentation.
(i) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by applicable
Laws or when reasonably requested by the Borrower or the
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Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested
information as will permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to
establish such Lender’s status for withholding Tax purposes in the applicable jurisdiction.
(ii) Without limiting the
generality of the foregoing, if the Borrower is a resident for tax purposes in the United States
(A) any Lender that is a
“United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver, on or before the date it becomes a party to this Agreement, to the Borrower and the Administrative Agent executed copies
(in such number of copies as shall be requested by the recipient) of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent
as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or
reduction of withholding Tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following
is applicable:
(I) executed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, or any subsequent versions
thereof or successors thereto, claiming eligibility for benefits of an income Tax treaty to which the United States is a party,
(II) executed copies of Internal Revenue Service Form W-8ECI, or any subsequent versions thereof or successors thereto,
(III) executed copies of Internal Revenue Service Form W-8IMY, or any subsequent versions thereof or successors thereto, and
all required supporting documentation,
(IV) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code,
(B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue
Code and (y) executed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, or any subsequent versions thereof or successors thereto, or
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(V) executed copies of any other form prescribed by applicable Laws as a basis
for claiming exemption from or a reduction in United States Federal withholding Tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the
withholding or deduction required to be made.
(iii) If a payment made to any Lender hereunder or under any other Loan
Document would be subject to United States federal withholding Tax imposed pursuant to FATCA if such Lender fails to comply with applicable reporting and other requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable law or as reasonably requested by the Borrower or the Administrative Agent, such
documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent sufficient for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine whether such Lender
has complied with such applicable reporting and other requirements of FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA
after the date of this Agreement.
(iv) Each Lender shall promptly (A) notify the Borrower and the Administrative
Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for Taxes from amounts payable
to such Lender.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent
have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or
the L/C Issuer, as the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by any Loan Party or with
respect to which any Loan Party has paid additional amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party
under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund), provided that each Loan Party, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to such Loan
Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay
such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the Borrower, any Subsidiary or any other Person.
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3.02 Illegality.
If any Lender reasonably determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for
any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any
obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended and (b) if such
notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender
shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all of such
Lender’s Eurodollar Rate Loans to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate
component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate
applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon
the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
3.03
Inability to Determine Rates.
If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof (a) the Administrative Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan or
(ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case
with respect to clause (a) above, “Impacted Loans”) or (b) the Administrative Agent or the Required Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar
Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make
or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods) and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate
component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent upon the instruction of the Required Lenders revokes such notice. Upon receipt
of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
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Notwithstanding the foregoing, if the Administrative Agent has made the determination described
in clause (a) of the first sentence of this Section, the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate
of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this section, (2) the
Administrative Agent notifies the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or
charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or
any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C
Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the
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Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such
Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such
Lender’s or the L/C Issuer’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction actually suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be presumptively correct absent manifest error. The Borrower
shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing
provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to
the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or the L/C Issuer’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).
(e) Reserves on Eurodollar Rate
Loans. The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of
such additional interest or costs from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such notice.
3.05 Compensation for Losses.
Promptly following demand of any Lender (with a copy to the Administrative Agent) accompanied by the certificate referred to below from time to
time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any
failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Eurodollar Rate Loan on the date or in the amount notified by the Borrower; or
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(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of
the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;
including any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
Concurrent with a demand for compensation pursuant to this Section 3.05, the Lender making such demand shall deliver to the
Borrower (with a copy to the Administrative Agent) a certificate setting forth in reasonable detail the basis for such Lender’s claim for compensation. Such certificate shall be presumptively correct absent manifest error.
3.06 Mitigation of Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. Each Lender may make any Credit Extension to the Borrower through any Lending Office,
provided that the exercise of this option shall not affect the obligation of the Borrower to repay the Credit Extension in accordance with the terms of this Agreement. If any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender or the L/C Issuer shall, as applicable, 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 judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be,
in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would
not otherwise be materially disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or
assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in accordance with Section 11.13.
3.07 Survival.
All of the Loan
Parties’ obligations under this Article III shall survive termination of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.
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ARTICLE IV
GUARANTY
4.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent, each Lender, each Affiliate of a Lender that enters
into a Swap Contract or a Treasury Management Agreement with the Borrower or any Subsidiary, and each other holder of the Obligations as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full when
due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Obligations are
not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary
contained herein or in any other of the Loan Documents or the other documents relating to the Obligations, the obligations of each Guarantor under this Agreement and the other Loan Documents shall not exceed an aggregate amount equal to the largest
amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.
4.02 Obligations Unconditional.
The obligations of the Guarantors under Section 4.01 are joint and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Obligations, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment in full), it being the
intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under this Article IV until such time as the Obligations have been paid in full and the Commitments have expired or terminated. Without limiting
the generality of the foregoing, it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the Loan Documents or any other document relating to the
Obligations shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or any other document relating to the Obligations shall be waived or any other guarantee of any of the Obligations or any security
therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;
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(d) any Lien granted to, or in favor of, the Administrative Agent or any other
holder of the Obligations as security for any of the Obligations shall fail to attach or be perfected; or
(e) any of the
Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever (except to the extent otherwise required by any Loan Document) and any requirement that the Administrative Agent or any other holder of the Obligations exhaust any right, power or remedy or proceed against any
Person under any of the Loan Documents or any other document relating to the Obligations or against any other Person under any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
The obligations of
each Guarantor under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any
holder of any of the Obligations, whether as a result of any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each other holder of the Obligations on demand for all reasonable costs and
expenses (including, without limitation, the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such holder of the Obligations in connection with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.
4.04 Certain Additional Waivers.
Each
Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and through the exercise of rights of contribution
pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Administrative Agent and
the other holders of the Obligations, on the other hand, the Obligations may be declared to be forthwith due and payable as specified in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances
specified in Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the holders of the Obligations
may exercise their remedies thereunder in accordance with the terms thereof.
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4.06 Rights of Contribution.
The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against
the other Guarantors as permitted under applicable law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights of
contribution until the Obligations have been paid in full and the Commitments have terminated.
4.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to
the Obligations whenever arising.
4.08 Release of Guarantors.
The Guarantors, and the guarantees provided in this Article IV, shall be released in the circumstances contemplated by Section 10.10 of
this Agreement.
4.09 Keepwell.
Each
Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly
and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor
all of its obligations under this Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP
Guarantor’s obligations and undertakings under this Article IV voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified
ECP Guarantor under this Section 4.09 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each Qualified ECP Guarantor intends this Section 4.09 to constitute, and
this Section 4.09 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
ARTICLE V
CONDITIONS PRECEDENT
TO CREDIT EXTENSIONS
5.01 Conditions of Effectiveness.
This Agreement shall be effective upon satisfaction or waiver of the following conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent of executed counterparts of this Agreement and the other Loan
Documents to be entered into on the Closing Date, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each Lender.
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(b) Opinions of Counsel. Receipt by the Administrative Agent of customary
opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as of the Closing Date.
(c) Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent of the following:
(i) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable and available, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the
Closing Date;
(ii) such certificates of resolutions or other action and incumbency certificates evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is
duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(d) Personal Property Collateral. Receipt by the Administrative Agent of the following:
(i) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party and each other jurisdiction
reasonably required by the Administrative Agent;
(ii) all certificates evidencing any certificated Equity Interests
pledged to the Administrative Agent pursuant to the Security Agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers
are deemed unnecessary by the Administrative Agent in its reasonable discretion under the law of the jurisdiction of organization of such Person);
(iii) searches of ownership of, and Liens on, United States registered intellectual property of each Loan Party in the
appropriate governmental offices; and
(iv) duly executed notices of grant of security interest in substantially the form
required by the Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property of the Loan Parties.
(e) Evidence of Insurance. Receipt by the Administrative Agent of copies of insurance policies or certificates of
insurance of the Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents.
(f) Convertible Subordinated Notes. The Borrower shall have provided to the Trustee under the Convertible Subordinated
Note Indenture written notice that the Obligations arising under the Credit Agreement have been designated by the Borrower as “Designated Senior Indebtedness” for purposes of the Convertible Subordinated Note Indenture.
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(g) Refinance of Existing Indebtedness. The Borrower and its Subsidiaries
shall have repaid all outstanding Indebtedness (other than Indebtedness permitted under Section 8.03) (the “Existing Indebtedness”) and terminated all commitments to extend credit with respect to the Existing
Indebtedness, and all Liens securing the Existing Indebtedness shall have been released.
(h) Fees. Receipt by the
Administrative Agent, the Arrangers and the Lenders of any fees required to be paid on or before the Closing Date to the extent invoices therefor have been delivered to the Borrower prior to the Closing Date.
(i) Attorney Costs. Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and
disbursements of one outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of
such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative Agent).
Without limiting the generality of the provisions of the
last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted
or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed
Closing Date specifying its objection thereto.
5.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the
other Type or a continuation of Eurodollar Rate Loans) is subject to the satisfaction or waiver of following conditions precedent:
(a) The representations and warranties of each Loan Party contained in Article VI or any other Loan Document, or which
are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that (i) such
representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (ii) such representations and warranties are qualified as to materiality, in
which case they shall be true and correct in all respects as of such date (or such earlier date).
(b) No Default shall
exist or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender, shall have received a Request for Credit Extension in accordance with the requirements hereof.
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Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans
to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a) and (b) have been satisfied (unless
waived) on and as of the date of the applicable Credit Extension. Notwithstanding the foregoing, (i) the only representations the accuracy of which shall be a condition to the availability of the Six3 Facilities on the Fifth Amendment Closing
Date shall be the Specified Representations and the Specified Merger Agreement Representations and (ii) Section 5.02(b) shall not be a condition to the availability of the Six3 Facilities on the Fifth Amendment Closing Date.
ARTICLE VI
REPRESENTATIONS AND
WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:
6.01 Existence, Qualification and Power.
Each Loan Party (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party have been duly authorized by all
necessary corporate or other organizational action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under,
or require any payment to be made under (i) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any material order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any material Law.
6.03 Governmental Authorization; Other Consents.
No
approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document other than (i) those that have already been obtained and are in full force and effect, (ii) filings to perfect the Liens created by the Collateral Documents, and
(iii) approvals, consents, exemptions, authorizations or other actions, notices or filings which are not material.
6.04 Binding Effect.
Each Loan Document has been duly executed and delivered by each Loan Party that is party thereto. Each Loan Document constitutes a legal, valid
and binding obligation of each Loan Party party
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thereto, enforceable against such Loan Party that is party thereto in accordance with its terms, except (i) as enforceability may be limited by applicable Debtor Relief Laws, by fraudulent
conveyance laws or by equitable principles relating to enforceability, (ii) as enforceability of the Liens granted under the Loan Documents may be limited by anti-assignment provisions in contracts with
Government Authorities that are not rendered ineffective by applicable law and (iii) as enforceability may be limited by the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Equity Interests in Foreign
Subsidiaries.
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (ii) fairly present the financial condition of the Borrower and its Subsidiaries (taken as a whole) as of the date thereof and their results of operations for the period covered thereby in
accordance with GAAP.
(b) The Interim Financial Statements (i) were prepared in accordance with GAAP; and (ii) fairly present
the financial condition of the Borrower and its Subsidiaries (taken as a whole) as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and
to normal year-end audit adjustments.
(c) From the date of the Audited Financial Statements to and including the Fifth Amendment Closing
Date, there has been no Disposition or any Recovery Event of any material part of the business or property of the Borrower and its Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business or property
(including any Equity Interests of any other Person) material in relation to the consolidated financial condition of the Borrower and its Subsidiaries, taken as a whole (excluding, for the avoidance of doubt, the Six3 Acquisition), in each case,
which is not reflected in the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in writing to the Lenders on or prior to the Fifth Amendment Closing Date.
(d) The financial statements delivered pursuant to Section 7.01(a) and (b) have been prepared in accordance with GAAP (except
as may otherwise be permitted under Section 7.01(a) and (b)) and present fairly (on the basis disclosed in the footnotes to such financial statements) the consolidated financial condition, results of operations and cash flows of
the Borrower and its Subsidiaries (taken as a whole) as of the dates thereof and for the periods covered thereby.
(e) Since the date of
the Audited Financial Statements, there has been no event or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.
6.06 Litigation.
There are no actions,
suits, proceedings, claims or disputes pending or, to the knowledge of the Responsible Officers of any Loan Party, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any Subsidiary or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b) could reasonably be expected to have a Material Adverse Effect.
6.07 No Default.
(a) Neither the
Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.
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(b) No Default has occurred and is continuing.
6.08 Ownership of Property; Liens.
Each
of the Borrower and its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not
reasonably be expected to have a Material Adverse Effect. The property of the Borrower and its Subsidiaries is not subject to any Liens other than Permitted Liens.
6.09 Environmental Compliance.
Except as
could not reasonably be expected to have a Material Adverse Effect:
(a) Each of the facilities and real properties owned,
leased or operated by the Borrower or any Subsidiary (the “Facilities”) and all operations at the Facilities are in compliance with all applicable Environmental Laws, and there is no violation of any Environmental Law with respect
to the Facilities or the businesses operated by the Borrower and its Subsidiaries at such time (the “Businesses”), and there are no conditions relating to the Facilities or the Businesses that would reasonably be expected to give
rise to liability under any applicable Environmental Laws.
(b) None of the Facilities contains, or has previously
contained, any Hazardous Materials at, on or under the Facilities in amounts or concentrations that constitute or constituted a violation of, or would reasonably be expected to give rise to liability under, Environmental Laws.
(c) Neither the Borrower nor any Subsidiary has received any written or verbal notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Facilities or the Businesses, nor does any
Responsible Officer of any Loan Party have knowledge or reason to believe that any such notice has been received or has been threatened.
(d) Hazardous Materials have not been transported or disposed of from the Facilities, or generated, treated, stored or disposed
of at, on or under any of the Facilities, in each case by or on behalf of the Borrower or any Subsidiary in violation of, or in a manner that would be reasonably likely to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Responsible Officers
of any Loan Party, threatened, under any Environmental Law to which the Borrower or any Subsidiary is or will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect to the Borrower, any Subsidiary, the Facilities or the Businesses.
(f) There has been no release or threat of release of Hazardous Materials at or from the Facilities, or arising from or related
to the operations (including, without limitation, disposal) of the Borrower or any Subsidiary in connection with the Facilities or otherwise in connection with the Businesses, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
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6.10 Insurance.
The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies, in such amounts, with
such deductibles and covering such risks as are customarily carried by companies similarly situated.
6.11 Taxes.
The Borrower and its Subsidiaries have filed or caused to be filed all federal, state and other material Tax returns and reports required to be
filed, and have paid all federal, state and other material Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except such Taxes, assessments, fees and
other governmental charges which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP, or for which
non-payment could not reasonably be expected to result in a Material Adverse Effect. To the knowledge of the Borrower, there is no proposed Tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect.
6.12 ERISA Compliance.
(a) Except as would not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance with the applicable provisions of
ERISA, the Internal Revenue Code and other Federal or state laws.
(b) There are no pending or, to the knowledge of the Responsible
Officers of any Loan Party, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) Except as would not reasonably be expected to have a Material Adverse Effect, (i) no ERISA Event has occurred, and neither any Loan
Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) each Loan Party and each ERISA Affiliate has met all
applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date
for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Internal Revenue Code) is 60% or higher and neither any Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could
reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither any Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other
than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or
Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute
proceedings under Title IV of ERISA to terminate any Pension Plan.
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6.13 Subsidiaries.
Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of each Subsidiary, together with (a) its
jurisdiction of incorporation or organization and (b) number and percentage of outstanding shares of each class owned (directly or indirectly) by the Borrower or any Subsidiary. The outstanding Equity Interests of each Material Subsidiary are
validly issued, fully paid and non-assessable.
6.14 Margin Regulations; Investment Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of
Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 8.01 or Section 8.05 or subject to any
restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 9.01(e) will be margin stock.
(b) None of the Borrower or any Subsidiary is or is required to be registered as an “investment company” under the Investment
Company Act of 1940.
6.15 Disclosure.
No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender (other than projected financial information, pro forma financial information and information of a general economic or industry nature) in connection with the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein (when taken as
a whole), in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, pro forma financial information and information of a general economic or
industry nature, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time, it being understood that such information may vary from actual results and that such
variations may be material.
6.16 Compliance with Laws.
Each of the Borrower and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith could not reasonably be expected to have a Material Adverse Effect.
6.17 Intellectual Property; Licenses, Etc.
Except as could not reasonably be expected to have a Material Adverse Effect, the Borrower and its Subsidiaries own, or possess the legal right
to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
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“IP Rights”) that are reasonably necessary for the operation of their respective businesses. Set forth on Schedule 6.17 is a list of all IP Rights registered or pending
registration with the United States Copyright Office or the United States Patent and Trademark Office and owned by each Loan Party as of the Closing Date. Except for such claims and infringements that could not reasonably be expected to have a
Material Adverse Effect, to the knowledge of the Responsible Officers of the Loan Parties, (a) no claim has been asserted and is pending by any Person challenging or questioning the use of any IP Rights or the validity or effectiveness of any
IP Rights, and (b) the use of any IP Rights by the Borrower or any Subsidiary, the granting of a right or a license in respect of any IP Rights from the Borrower or any Subsidiary or any slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary does not infringe on any rights of any other Person. As of the Closing Date, none of the IP Rights owned by any Loan Party
is subject to any licensing agreement or similar arrangement except as set forth on Schedule 6.17.
6.18 Solvency.
The Borrower and its Subsidiaries are Solvent on a consolidated basis.
6.19 Perfection of Security Interests in the Collateral.
The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security
interests and Liens are currently perfected security interests and Liens (to the extent perfection is required pursuant to the Collateral Documents), prior to all other Liens other than Permitted Liens.
6.20 Business Locations; Taxpayer Identification Number.
Set forth on Schedule 6.20-1 is the chief executive office, U.S. tax payer identification number and organizational identification
number of each Loan Party as of the Closing Date. The exact legal name and state of organization of each Loan Party as of the Closing Date is as set forth on the signature pages hereto. Except as set forth on Schedule 6.20-2, no Loan Party
has during the five years preceding the Closing Date (i) changed its legal name, (ii) changed its state of formation, or (iii) been party to a merger, consolidation or other change in structure.
6.21 OFAC.
Neither the Borrower nor any
Subsidiary nor, to the knowledge of the Borrower and its Subsidiaries, any director, officer, employee, affiliate or representative thereof, is an individual or entity that is, or is controlled by an individual or entity that is (a) currently
the subject or target of any Sanctions, (b) included on OFAC’s List of Specialty Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other
relevant sanctions authority applicable to the Borrower or any of its Subsidiaries or (c) located, organized or resident in any Designated Jurisdiction. Neither the Borrower nor its Subsidiaries have any of its assets in a Designated
Jurisdiction. .
6.22 Anti-Corruption Laws.
The Borrower and its Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977,
the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions applicable to the Borrower and its Subsidiaries and have instituted and maintained policies and procedures designed to ensure compliance with such laws, in
each case, in all material respects.
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ARTICLE VII
AFFIRMATIVE COVENANTS
So long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than (i) contingent or indemnification obligations not then due and (ii) obligations in respect of any Swap
Contract or Treasury Management Agreement), or any Letter of Credit shall remain outstanding, the Loan Parties shall and shall cause each Subsidiary to:
7.01 Financial Statements.
Deliver to
the Administrative Agent (for delivery to each Lender):
(a) as soon as available, but in any event within ninety
(90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending June 30, 2011, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared
in accordance with GAAP, and in the case of such consolidated statements audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and
(b) as soon as available, but in any event within forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, commencing with the fiscal quarter ending September 30, 2010, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, the related consolidated
statements of income or operations for the portion of the Borrower’s fiscal year then ended, and the related consolidated statements of changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the
Borrower’s fiscal year then ended, setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable
detail and in the case of such consolidated statements certified by the chief executive officer, chief financial officer, vice president-finance, treasurer or controller of the Borrower as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
7.02 Certificates; Other Information.
Deliver to the Administrative Agent (for delivery to each Lender):
(a) concurrently with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its
independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default under the financial covenants set forth herein or, if any such
Default shall exist, stating the nature and status of such event, which certificate may be limited or omitted to the extent required by such accountants under applicable accounting rules or guidelines;
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(b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, vice president – finance, treasurer or controller of the Borrower;
(c) concurrently with the delivery of the financial statements referred to in Section 7.01(a), commencing with the
fiscal year ending June 30, 2011, (i) an annual business plan and budget of the Borrower and its Subsidiaries and (ii) forecasts prepared by management of the Borrower, in form satisfactory to the Administrative Agent, of consolidated
balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the immediately following fiscal year (including the fiscal year in which the Maturity Date occurs);
(d) concurrently with the delivery of the financial statements referred to in Section 7.01(a), a report signed by a
Responsible Officer of the Borrower that supplements Schedule 6.17 such that, as supplemented, such Schedule would be accurate and correct in all material respects as of such date (if no supplement is required to cause such
Schedule to be accurate and complete as of such date or if the only new information would be the removal of previously included items, then the Borrower shall not be required to deliver such a report);
(e) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a summary
of any change in accounting policies or financial reporting practices by the Borrower or any Subsidiary (if no such change has been made, then the Borrower shall not be required to deliver such a summary);
(f) promptly after any reasonable request by the Administrative Agent in writing, copies of any detailed audit reports,
management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them; and
(g) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent on behalf of any Lender may from time to time reasonably request in writing.
Documents required to be delivered pursuant to Section 7.01(a) or (b) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent upon its request and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar
electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its
Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that so long as the Borrower is the
issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Lenders
shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower
shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for
purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Side Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”. Notwithstanding the foregoing, the Borrower shall be under no obligation to
mark any Borrower Materials “PUBLIC.”
7.03 Notices.
Promptly notify the Administrative Agent and each Lender of:
(a) the occurrence of any Default;
(b) any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; and
(c) any determination by the Borrower referred to in Section 2.10(b).
Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been breached.
7.04 Payment of Taxes.
Pay and discharge as the same shall become due and payable all material Tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless (a) the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary, or
(b) the failure to pay and discharge such obligations could not reasonably be expected to have a Material Adverse Effect.
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7.05 Preservation of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in
a transaction permitted by Section 8.02, 8.04 or 8.05.
(b) Preserve, renew and maintain in full force and
effect its good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.02, 8.04 or 8.05 or to the extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(c) Take all reasonable action to maintain all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(d) Preserve or renew all of its IP Rights, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
7.06 Maintenance of Properties.
(a)
Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted.
(b) Make all necessary repairs thereto and renewals and replacements thereof, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
7.07 Maintenance of Insurance.
(a) Maintain in full force and effect insurance with financially sound and reputable insurance companies not Affiliates of the Borrower, in
such amounts, with such deductibles and covering such risks as are customarily carried by companies similarly situated.
(b) Cause the
Administrative Agent and its successors and/or assigns to be named as lender’s loss payee or mortgagee as its interest may appear, and/or additional insured with respect to any such insurance providing liability coverage or coverage in respect
of any Collateral, and use commercially reasonable efforts to cause each provider of any such insurance to agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it
will give the Administrative Agent thirty days (or such lesser amount as the Administrative Agent may agree) prior written notice before any such policy or policies shall be cancelled, subject to the cancellation provisions of the state jurisdiction
for non-payment of premium.
7.08 Compliance with Laws.
Comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except
in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
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7.09 Books and Records.
(a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be.
(b) Maintain such
books of record and account in material conformity with all applicable material requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.
7.10 Inspection Rights.
Permit
representatives and independent contractors of the Administrative Agent and, to the extent permitted by applicable Laws and subject to applicable confidentiality requirements, the Lenders to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at
such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that (a) absent an Event of Default, the Borrower shall be required
to pay for only one such visit and/or inspection by the Administrative Agent in any fiscal year of the Borrower and the maximum amount the Borrower shall be required to pay for such visit and/or inspection shall not exceed $25,000, (b) when an
Event of Default exists the Administrative Agent and, to the extent permitted by applicable Laws and subject to applicable confidentiality requirements, the Lenders (or any of their respective representatives or independent contractors) may do any
of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice as often as they may reasonably require and (c) a Responsible Officer of the Borrower shall be given the opportunity to be
present during such discussions and any such discussions with the Borrower’s independent certified public accountants.
7.11 Use of Proceeds.
Use the Six3 Facilities to finance the Six3 Acquisition Costs on the Fifth Amendment Closing date, and use the proceeds of the other
Credit Extensions to refinance existing Indebtedness of the Borrower and for working capital, capital expenditures and other general corporate purposes and not (a) in contravention of any Law or prohibited by this Agreement or (b) to
directly or indirectly, use the proceeds of any Credit Extension or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities or business with any
individual or entity, or in any Designated Jurisdiction, that, at the time of such funding is the subject of Sanctions, or in any manner that will result in a violation by any individual or entity (including any individual or entity participating in
the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender or otherwise) of Sanctions.
7.12 Additional
Subsidiaries.
(a) Within sixty (60) days after any Person (other than an Excluded Subsidiary and except as set forth in
Section 7.12(b) below) becomes a Material Domestic Subsidiary (or such longer period as the Administrative Agent shall agree), cause such Person to (i) become a Guarantor by executing and delivering to the Administrative Agent a
Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate for such purpose, and (ii) deliver to the Administrative Agent documents of the types referred to in Sections 5.01(c) and (d) and
customary opinions of counsel to such Person, all in form, content and scope reasonably satisfactory to the Administrative Agent.
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(b) Within thirty (30) days after the Fifth Amendment Closing Date (or such longer period as
the Administrative Agent shall agree), cause the Target and each of its Domestic Subsidiaries (other than an Excluded Subsidiary) existing on the Fifth Amendment Closing Date to (i) become a Guarantor by executing and delivering to the
Administrative Agent a Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate for such purpose, and (ii) deliver to the Administrative Agent documents of the types referred to in Sections 5.01(c) and
(d) and customary opinions of counsel to the Target and its Domestic Subsidiaries (other than an Excluded Subsidiary), all in form, content and scope reasonably satisfactory to the Administrative Agent.
7.13 Pledged Assets.
(a) Equity
Interests.
(i) Cause 100% of the issued and outstanding Equity Interests of each Material Domestic Subsidiary (other
than any Excluded Property) to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the holders of the Obligations, to secure the Obligations pursuant to the Collateral Documents
(subject to Permitted Liens), and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may reasonably request including, any filings and deliveries to perfect such Liens,
Organization Documents and resolutions all in form, content and scope reasonably satisfactory to the Administrative Agent; provided that, with respect to the Target and its Subsidiaries, the foregoing covenant shall only be applicable from
and after the earlier of (A) compliance with Section 7.12(b) and (B) the time required for compliance with Section 7.12(b).
(ii) At any time that the Foreign Subsidiaries directly owned by the Borrower or any Domestic Subsidiary (the “First
Tier Foreign Subsidiaries”) shall in the aggregate account for more than (A) ten percent (10%) of Consolidated EBITDA for the Applicable Period, (B) ten percent (10%) of total revenues of the Borrower and its
Subsidiaries on a consolidated basis for the Applicable Period or (C) ten percent (10%) of total assets of the Borrower and its Subsidiaries on a consolidated basis as of the end of the Applicable Period (each such threshold, a
“Foreign Subsidiary Threshold”), then the Borrower shall within sixty (60) days after delivery of such financial statements pursuant to Section 7.01(a) or (b) cause 66% (or such greater percentage that,
due to a change in an applicable Law after the date hereof, (A) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income Tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary’s United States parent and (B) could not reasonably be expected to cause any adverse Tax consequences) of the issued and outstanding Equity Interests (other than any Excluded Property) entitled to
vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests (other than any Excluded Property) not entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) in one or more First Tier Foreign Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the
holders of the Obligations, to secure the Obligations pursuant to the Collateral Documents (subject to Permitted Liens) such that immediately after such pledge, the First Tier Foreign Subsidiaries whose Equity Interests is not subject to such a Lien
shall not exceed any Foreign Subsidiary Threshold, and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may request including, any filings and deliveries to perfect such
Liens, Organization Documents and resolutions all in form, content and scope reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, with respect to the Target and its Subsidiaries, the foregoing covenant shall only be
applicable from and after the earlier of (A) compliance with Section 7.12(b) and (B) the time required for compliance with Section 7.12(b).
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(b) Other Property. Take or cause to be taken such other actions reasonably requested by
the Administrative Agent to ensure that all personal property (other than Excluded Property) of each Loan Party to be subject at all times to first priority, perfected (subject, in the case of Collateral for which priority or perfection is
established through control, only to the extent control of such Collateral is required by the Security Agreement) Liens in favor of the Administrative Agent, for the benefit of the holders of the Obligations, to secure the Obligations pursuant to
the Collateral Documents (subject to Permitted Liens) and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may reasonably request including filings and deliveries necessary
to perfect such Liens, all in form, content and scope reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, neither the Borrower nor any Subsidiary shall be required to enter into any control agreements or take any
agreement governed by the laws of any jurisdiction other than those of the United States or any state thereof. Notwithstanding the foregoing, with respect to the Target and its Subsidiaries, the foregoing covenant shall only be applicable from and
after the earlier of (i) compliance with Section 7.12(b) and (ii) the time required for compliance with Section 7.12(b).
7.14 State of Formation and Form of Entity.
Provide five (5) days prior written notice to the Administrative Agent (or such lesser period as the Administrative Agent may agree) prior
to changing its legal name, state of formation or form of organization.
7.15 Anti-Corruption Laws.
Conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar
anti-corruption legislation in other jurisdictions applicable to the Borrower and its Subsidiaries and maintain policies and procedures designed to ensure compliance with such laws, in each case, in all material respects.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied
(other than (i) contingent or indemnification obligations not then due and (ii) obligations in respect of any Swap Contract or Treasury Management Agreement), or any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall
it permit any Subsidiary to:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
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(b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that the property covered thereby is not increased;
(c) Liens for Taxes,
assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person
in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and
suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not overdue for more than sixty days or, if overdue
for more than sixty days, are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;
(e) pledges or deposits or statutory trusts in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation, other than any Lien imposed by ERISA that secures any amount in excess of the Threshold Amount;
(f) deposits to secure the performance of bids, trade contracts, licenses and leases (other than Funded Indebtedness),
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are
not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not
constituting an Event of Default under Section 9.01(h);
(i) Liens securing Indebtedness permitted under
Section 8.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) such Liens attach to such property concurrently with or within ninety
days after the acquisition thereof;
(j) leases or subleases granted to others not interfering in any material respect with
the business of the Borrower or any Subsidiary;
(k) any interest of title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(l) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
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(n) Liens of a collection bank arising under
Section 4-210 of the Uniform Commercial Code on items in the course of collection;
(o) Liens arising on any real property as a result of any eminent domain, condemnation or similar proceeding being commenced
with respect to such real property;
(p) Liens on property of Foreign Subsidiaries securing Foreign Subsidiary
Indebtedness;
(q) Liens on property or assets acquired pursuant to a Permitted Acquisition or any other Investment
permitted by Section 8.02 (and the proceeds thereof) or on property or assets of a Subsidiary in existence at the time such Subsidiary is acquired pursuant to a Permitted Acquisition and not created in contemplation thereof,
provided that (i) such Liens do not at any time extend to any other property or assets and (ii) the aggregate outstanding principal amount of Indebtedness secured by such Liens shall not at any time exceed $25 million;
(r) receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates
a Lien on the related inventory and proceeds thereof;
(s) Liens on cash or cash equivalents used to defease or to satisfy
and discharge Indebtedness, provided that such defeasance or satisfaction and discharge is not prohibited hereunder;
(t)
Liens in favor of customs and revenue authorities arising as a matter of law to secure the payment of customs duties in connection with the importation of goods;
(u) Liens solely on any cash earnest money deposits made by the Borrower or any of its Subsidiaries in connection with an
Investment permitted by Section 8.02;
(v) Liens on cash deposits securing any Swap Contracts provided
that the aggregate amount of cash deposits subject to such Liens shall not exceed $10 million;
(w) Liens relating to the
financing of insurance premiums so long as such Liens do not encumber any property other than cash paid to any such insurance company in respect of such insurance;
(x) Liens on Equity Interests in Joint Ventures securing obligations of such Joint Venture; and
(y) Liens (other than Liens described in the foregoing clauses) securing obligations not exceeding $10 million in the aggregate
outstanding at any time.
8.02 Investments.
Make any Investments, except:
(a) Investments in the form of cash or Cash Equivalents or Investments that were Cash Equivalents when made;
(b) Investments existing as of the Closing Date and set forth in Schedule 8.02;
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(c) Investments in any Person that (i) is a Loan Party prior to giving
effect to such Investment or (y) simultaneously with such Investment shall become a Loan Party in accordance with the terms hereof;
(d) Investments in any Domestic Subsidiary;
(e) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(f) Investments consisting of the non-cash portion of consideration received in connection with Dispositions permitted pursuant
to Section 8.05;
(g) Guarantees permitted by Section 8.03;
(h) Permitted Acquisitions and the Six3 Acquisition;
(i) Investments by any Foreign Subsidiary in another Foreign Subsidiary;
(j) travel, relocation, tuition reimbursement, 401(k) account transition and other advances made to officers, directors and
employees in the ordinary course of the business to the extent such advances do not violate applicable Law;
(k) Call
Options and purchases of Equity Interests of the Borrower pursuant thereto;
(l) Subsidiaries of the Borrower may be
established or created, if (i) to the extent such new Subsidiary is a Domestic Subsidiary, the Borrower and such Subsidiary comply with the provisions of Section 7.12, if applicable; provided that, in each case, to the extent
such new Subsidiary is created solely for the purpose of consummating a merger transaction pursuant to an acquisition permitted by Section 8.04, and such new Subsidiary at no time holds any assets or liabilities other than any merger
consideration contributed to it contemporaneously with the closing of such merger transactions, such new Subsidiary shall not be required to take the actions, set forth in Section 7.12 or 7.13, as applicable, until the respective
acquisition is consummated (at which time the surviving entity of the respective merger transaction shall be required to so comply within ten Business Days or such longer period as the Administrative Agent shall agree);
(m) Investments resulting from pledges and deposits referred to in Section 8.03;
(n) any Investment in a Foreign Subsidiary to the extent such Investment is substantially contemporaneously repaid in full with
a dividend or other distribution from such Foreign Subsidiary;
(o) Investments in the Borrower’s Group Executive
Retirement Plan (the Supplemental Savings Plan) maintained in a Rabbi Trust consistent with past practices; and
(p)
Investments not permitted by the foregoing clauses (including Foreign Acquisitions but excluding Acquisitions that are not Foreign Acquisitions) in an aggregate amount outstanding at any time not to exceed the sum of (i) the greater of
(A) $300 million or (B) ten percent (10%) of total assets of the Borrower and its Subsidiaries on a consolidated basis as of the end of the Applicable Period plus (ii) the Available Amount.
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8.03 Indebtedness.
Create, incur or assume any Indebtedness on and after the Closing Date, or suffer to exist any Indebtedness outstanding on the Closing Date,
except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness set forth in Schedule 8.03 and renewals, refinancings and extensions thereof; provided that
(i) the amount of such Indebtedness is not increased at the time of such renewal, refinancing or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the material terms taken as a whole of such renewal, refinancing or extension are customary for Indebtedness of a similar nature
or are not materially less favorable to the Borrower and its Subsidiaries than the terms of the Indebtedness being renewed, refinanced or extended;
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that such obligations
are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or
changes in the value of securities issued by such Person and not for purposes of speculation;
(e) purchase money
Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (i) the aggregate
outstanding principal amount of all such Indebtedness outstanding at the time of, and after giving effect to, the incurrence thereof, shall not exceed the greater of (A) $100 million or (B) five percent (5%) of total assets of the
Borrower and its Subsidiaries on a consolidated basis as of the end of the Applicable Period; and (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed;
(f) Subordinated Indebtedness and senior unsecured Indebtedness (including any Subordinated Indebtedness or senior unsecured
Indebtedness that refinances, replaces, exchanges or extends the Convertible Subordinated Notes); provided that (i) no Default shall have occurred and be continuing on the date such Indebtedness is incurred; (ii) after giving effect
to the incurrence of such Indebtedness and the application of the proceeds thereof on a Pro Forma Basis the Loan Parties shall be in compliance with the financial covenants set forth in Section 8.11 recomputed as of the end of the
Applicable Period; (iii) with respect to any such Indebtedness the aggregate amount of principal payments required to be made on such Indebtedness prior to the date that is 181 days after the Maturity Date shall not exceed 10% of the original
principal amount of such Indebtedness; and (iv) the maturity date of such Indebtedness shall be at least 181 days after the Maturity Date;
(g) Indebtedness under surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course
of business;
(h) Indebtedness that may be deemed to exist under the agreements relating to any Investment permitted under
Section 8.02 (including any Permitted Acquisition) or Disposition as
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a result of the obligation of the Borrower or such Subsidiary to pay indemnification, earn-outs, consulting arrangements, contingent purchase price payments or other purchase price adjustments or
similar obligations;
(i) the Call Options and the Warrants;
(j) Indebtedness arising under the Convertible Subordinated Notes;
(k) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed $50 million at any time outstanding
(“Foreign Subsidiary Indebtedness”);
(l) Indebtedness issued in lieu of cash payments of Restricted
Payments permitted by Section 8.06(e); provided that such Indebtedness is subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(m) Indebtedness owing to any insurance company in connection with the financing of any insurance premiums permitted by such
insurance company in the ordinary course of business;
(n) Indebtedness in respect of overdraft facilities, employee credit
card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the ordinary course of business;
(o) obligations of the Borrower arising in connection with the Borrower’s Group Executive Retirement Plan (the
Supplemental Savings Plan) maintained in a Rabbi Trust; and
(p) Guarantees with respect to Indebtedness permitted under
this Section 8.03 or other obligations; provided that any such Guarantee shall constitute an Investment by the Person providing such Guarantee in the primary obligor with respect to such Indebtedness or obligation.
8.04 Fundamental Changes.
Merge,
dissolve, liquidate or consolidate with or into another Person, except that so long as no Default exists or would result therefrom, (a) the Borrower may merge or consolidate with any of its Subsidiaries provided that the Borrower is the
continuing or surviving Person, (b) any Subsidiary may merge or consolidate with any other Subsidiary provided that if a Loan Party is a party to such transaction, (x) the continuing or surviving Person is a Loan Party or
(y) simultaneously with such transaction, the continuing or surviving corporation shall become a Loan Party in accordance with the terms hereof, (c) the Borrower or any Subsidiary may merge with any other Person in connection with an
Investment (including a Permitted Acquisition) permitted under Section 8.02; provided that if the Borrower is a party thereto then the Borrower is the continuing or surviving Person, (d) any Subsidiary may dissolve, liquidate
or wind up its affairs at any time provided that such dissolution, liquidation or winding up, as applicable, could not have a Material Adverse Effect, (e) Dispositions permitted by Section 8.05 and (f) any Subsidiary may merge,
dissolve, liquidate or consolidate in connection with a Disposition permitted by Section 8.05.
8.05 Dispositions.
Make any Disposition unless (a) no Default shall have occurred and be continuing; (b) after giving effect to such Disposition on a
Pro Forma Basis the Loan Parties shall be in compliance with the financial covenants set forth in Section 8.11 recomputed as of the end of the Applicable Period; (c) at
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least 80% of the consideration paid in connection with all Dispositions in any fiscal year shall be cash or Cash Equivalents paid contemporaneous with consummation of such Disposition;
(d) the total consideration paid in connection with any Disposition shall be in an amount not less than the fair market value of the property disposed of; (e) if such transaction is a Sale and Leaseback Transaction, such transaction is not
prohibited by the terms of Section 8.15; and (f) such transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a
transaction otherwise permitted under this Section 8.05.
8.06 Restricted Payments.
Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(a) each Subsidiary may declare and make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably
according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in Equity
Interests of such Person; and
(c) the Borrower and each Subsidiary may purchase Call Options;
(d) the Borrower and each Subsidiary may declare and make Restricted Payments so long as (i) no Default shall have
occurred and be continuing or would result from such Restricted Payment, (ii) after giving effect to such Restricted Payment on a Pro Forma Basis the Loan Parties shall be in compliance with the financial covenants set forth in
Section 8.11 recomputed as of the end of the Applicable Period and (iii) immediately after giving effect to such Restricted Payment, there shall be at least $50 million of availability existing under the Aggregate Revolving
Commitments;
(e) the Borrower may repurchase shares of its Equity Interests pursuant to or in connection with any of its
employee stock purchase plans, stock incentive plans, stock options plans and other stock plans, provided that (i) the aggregate amount of all such repurchases shall not exceed $10 million during the term of this Agreement and
(ii) no such repurchase may be made at any time that a Default exists; and
(f) the Borrower and each Subsidiary may
declare and make Restricted Payments with the Available Amount so long as (i) no Default shall have occurred and be continuing or would result from such Restricted Payment and (ii) after giving effect to such Restricted Payment on a Pro
Forma Basis the Loan Parties shall be in compliance with the financial covenants set forth in Section 8.11 recomputed as of the end of the Applicable Period.
8.07 Change in Nature of Business.
Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on
the Closing Date or any business substantially related or incidental thereto or reasonable extensions thereof.
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8.08 Transactions with Affiliates.
Enter into or permit to exist any transaction or series of transactions with any Affiliate of such Person other than (a) advances of
working capital to any Loan Party, (b) transfers of cash and assets to any Loan Party, (c) intercompany transactions among the Borrower and its Subsidiaries expressly permitted by this Agreement and (d) other transactions on terms and
conditions substantially as favorable to such Person as would be obtainable by it in a comparable arms-length transaction with a Person other than an Affiliate. For the avoidance of doubt, this
Section 8.08 shall not apply to employment, bonus, retention and severance arrangements with, and payments of compensation or benefits to or for the benefit of, current or former employees, consultants, officers or directors of the
Borrower or any of its Subsidiaries in the ordinary course of business.
8.09 Burdensome Agreements.
Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts the ability of any Loan Party or Material Foreign
Subsidiary to (i) make Restricted Payments to any Loan Party, (ii) pay any Indebtedness owed to any Loan Party, (iii) transfer any of its property to any Loan Party, (iv) pledge its Collateral pursuant to the Loan Documents or
(v) act as a Loan Party pursuant to the Loan Documents, except (in respect of any of the matters referred to in clauses (i)-(v) above) for (1) this Agreement and the other Loan Documents,
(2) any document or instrument governing Indebtedness incurred pursuant to Section 8.03, provided that (x) with respect to Indebtedness incurred pursuant to Section 8.03(e) such restriction contained therein
relates only to the asset or assets constructed or acquired in connection therewith and (y) with respect to Indebtedness incurred pursuant to any other clause of Section 8.03, any such restriction is limited to matters referred to
in clauses (i), (ii) and (iii) above and does not materially adversely affect the ability of the Borrower to service its Indebtedness (including the Indebtedness arising under the Credit Agreement), (3) any Permitted Lien or any
document or instrument governing any Permitted Lien, provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien, (4) customary restrictions and conditions contained in any
agreement relating to the sale of any property permitted under Section 8.05 pending the consummation of such sale, (5) anti-assignment provisions in government contracts, or requires the grant of any security for any obligation if
such property is given as security for the Obligations, (6) software and other intellectual property licenses pursuant to which the Borrower or such Subsidiary is the licensee of the relevant software or intellectual property, as the case may
be (in which case, any prohibition or limitation shall relate only to the assets subject of the applicable licenses), (7) any agreements relating to Foreign Subsidiary Indebtedness (in which case, any prohibition or limitation shall relate only
to the assets of such Foreign Subsidiaries), (8) prohibitions and limitations in effect on the date hereof and listed on Schedule 8.09, (9) customary provisions contained in joint venture agreements and other similar agreements
entered into in the ordinary course of business and applicable to Joint Ventures, (10) customary provisions restricting the subletting or assignment of any lease governing a leasehold interest, (11) customary restrictions and conditions
contained in any agreement relating to any Disposition of property not prohibited hereunder, (12) customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (13) restrictions contained in
any Contractual Obligations relating to the consummation of a transaction which restrictions are conditioned upon the repayment of the Obligations in full and the termination or expiration of the Commitments, and (14) any agreement in effect at
the time any Person becomes a Subsidiary, so long as such agreement was not entered into in contemplation of such Person becoming a Subsidiary.
8.10
Use of Proceeds.
Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
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8.11 Financial Covenants.
(a) Consolidated Senior Secured Leverage Ratio. Permit the Consolidated Senior Secured Leverage Ratio as of the end of any fiscal
quarter of the Borrower to be greater than 4.0:1.0.
(b) Consolidated Total Leverage Ratio. Permit the Consolidated Total Leverage
Ratio as of the end of any fiscal quarter of the Borrower to be greater than 4.5:1.0.
(c) Consolidated Fixed Charge Coverage
Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 2.0:1.0.
(d) Convertible Subordinated Notes. If on December 31, 2013 the aggregate outstanding principal amount of the Convertible
Subordinated Notes is greater than $150 million, then, for so long as the aggregate outstanding principal amount of the Convertible Subordinated Notes is in excess of $150 million, permit Liquidity to be less than $300 million.
8.12 Prepayments of Subordinated Indebtedness and Senior Unsecured Indebtedness.
(a) Make any prepayment (whether optional or mandatory) of any Subordinated Indebtedness or any senior unsecured Indebtedness, in each case,
incurred under Section 8.03(f), other than:
(i) the prepayment of any Subordinated Indebtedness or any senior
unsecured Indebtedness with the net cash proceeds of the issuance of any other Indebtedness (other than Loans);
(ii) the
prepayment of senior unsecured Indebtedness with cash on hand or proceeds of Revolving Loans in an aggregate amount not to exceed $25 million during the term of this Agreement;
(iii) other prepayments of Subordinated Indebtedness and senior unsecured Indebtedness with cash on hand or proceeds of
Revolving Loans so long as (A) no Default shall have occurred and be continuing or would result from such prepayment, (B) after giving effect to such prepayment on a Pro Forma Basis the Consolidated Senior Secured Leverage Ratio recomputed
as of the end of the Applicable Period is not greater than 2.75:1.0 and (C) immediately after giving effect to such prepayment, there shall be at least $50 million of availability existing under the Aggregate Revolving Commitments; and
(iv) other prepayments of Subordinated Indebtedness and senior unsecured Indebtedness using the Available Amount so long as
(A) no Default shall have occurred and be continuing or would result from such prepayment and (B) after giving effect to such prepayment on a Pro Forma Basis the Loan Parties shall be in compliance with the financial covenants set forth in
Section 8.11 recomputed as of the end of the Applicable Period.
(b) Make any payment of principal, interest or other amounts
on any Subordinated Indebtedness in violation of the subordination provisions applicable to such Subordinated Indebtedness.
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8.13 Subordinated Indebtedness Documents.
Amend or modify any Subordinated Indebtedness if such amendment or modification would add or change any terms in a manner adverse to the
Lenders (including, without limitation, any amendment or modification that would shorten the final maturity or average life to maturity or require any payment to be made sooner than originally scheduled or increase the interest rate applicable
thereto).
8.14 Organization Documents; Fiscal Year; Legal Name.
(a) Amend, modify or change its Organization Documents in a manner materially adverse to the Lenders.
(b) Change its fiscal year.
8.15 Sale
Leasebacks.
Enter into any Sale and Leaseback Transaction other than any Permitted Sale Leaseback Transaction.
8.16 Sanctions.
Directly or, to the
knowledge of the Borrower or any of its Subsidiary, indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any
Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any
Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.
8.17 Anti-Corruption Laws.
Directly or,
to the knowledge of the Borrower or any Subsidiary, indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 or other similar
anti-corruption legislation in other jurisdictions applicable to the Borrower or any of its Subsidiaries.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events
of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of
any Loan or any L/C Obligation, or (ii) within five days after the same becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder, or any other amount payable hereunder or under any other Loan Document; or
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(b) Specific Covenants.
(i) Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 7.01 or
7.02 and such failure continues for five days; or
(ii) Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.03(a), 7.05(a) or 7.11 or Article VIII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty days; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made
by or on behalf of any Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower, any Guarantor or any Material Foreign Subsidiary fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Indebtedness; (ii) the Borrower, any Guarantor or any Material Foreign Subsidiary fails to observe or perform any other
agreement or condition relating to any Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the
holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, such Material Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to its stated maturity; or (iii) there occurs under any Swap Contract an Early Termination Date
(as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower, any Guarantor or any Material Foreign Subsidiary is the Defaulting Party (as defined in such Swap Contract) or
(B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower, any Guarantor or any Material Foreign Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the
Borrower, any Guarantor or any Material Foreign Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. The Borrower, any Guarantor or any Material Foreign Subsidiary institutes or consents
to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for sixty calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues
undismissed or unstayed for sixty calendar days, or an order for relief is entered in any such proceeding; or
(g)
Inability to Pay Debts; Attachment. (i) The Borrower, any Guarantor or any Material Foreign Subsidiary becomes unable or admits in writing its inability or fails generally to
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pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within thirty days after its issue or levy; or
(h) Judgments.
There is entered against the Borrower, any Guarantor or any Material Foreign Subsidiary one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the insurer has been notified of the claim and does not dispute coverage) and (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or
(B) there is a period of thirty consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or
could reasonably be expected to result in liability of one or more Loan Parties under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) one or more Loan
Parties or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than (i) contingent or indemnification obligations not then due and
(ii) obligations in respect of any Swap Contract or Treasury Management Agreement), ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any
Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control;
(l) Contract Matters.
(i) The Borrower, any Guarantor or any Material Foreign Subsidiary shall be suspended or debarred from contracting with the
United States Government and such suspension or debarment shall not have been lifted within thirty (30) days after the imposition thereof; or
(ii) The United States Government shall have terminated any contract to which the Borrower, any Guarantor or any Material
Foreign Subsidiary is a party and such termination would have a Material Adverse Effect; provided, however, that such termination shall not constitute an Event of Default so long as the Borrower, such Guarantor or such Material Foreign
Subsidiary is contesting such termination in good faith.
9.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
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(b) declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and
remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable Law or at equity;
provided, however, that
upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the
L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
9.03
Application of Funds.
After the exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 9.02), any amounts received on account of the Obligations, subject
to the provisions of Sections 2.14 and 2.15, shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts
(including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than
principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III), ratably among
them in proportion to the respective amounts described in this clause Second payable to them;
Third, to
payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic payments, and any interest accrued thereon, due under any Swap
Contract between the Borrower or any Subsidiary and any Lender or any Affiliate of a Lender (or any Person that was a Lender or an Affiliate of a Lender on the date such Person entered into such Swap Contract) to the extent such Swap Contract is
permitted by Section 8.03(d), ratably among the holders of such Obligations in proportion to the respective amounts described in this clause Third held by them;
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Fourth, to (a) payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and any interest accrued thereon, due under any Swap Contract between the Borrower or any Subsidiary and any Lender or any
Affiliate of a Lender (or any Person that was a Lender or an Affiliate of a Lender on the date such Person entered into such Swap Contract) to the extent such Swap Contract is permitted by Section 8.03(d), (c) payments of amounts
due under any Treasury Management Agreement between the Borrower or any Subsidiary and any Lender or any Affiliate of a Lender (or any Person that was a Lender or an Affiliate of a Lender on the date such Person entered into such Treasury Management
Agreement) and (d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and
2.14, ratably among the holders of such Obligations in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as
otherwise required by Law.
Subject to Section 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but
appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section 9.03.
Notwithstanding the foregoing, Obligations arising under any Swap Contract or any Treasury Management Agreement shall be excluded from the
application described above if the Administrative Agent has not received written notice, together with such supporting documentation as the Administrative Agent may request, from the Lender or Affiliate of a Lender (or Person that was a Lender or an
Affiliate of a Lender on the date such Person entered into such Swap Contract or Treasury Management Agreement) party to such Swap Contract or Treasury Management Agreement, as the case may be. Each Lender or Affiliate of a Lender (or Person that
was a Lender or an Affiliate of a Lender on the date such Person entered into such Swap Contract or Treasury Management Agreement) party to any Swap Contract or Treasury Management Agreement not a party to this Agreement that has given the notice
contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article X for itself and its Affiliates as if a “Lender” party
hereto.
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ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and
Authority.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Loan Party shall have rights as a third party
beneficiary of any of such provisions (except with respect to (i) the right of the Parent to consent to a successor Administrative Agent pursuant to Section 10.06 and (ii) the provisions of Section 10.10). It is
understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its
capacities as a Lender, Swing Line Lender (if applicable), potential Swap Contract provider and potential Treasury Management Agreement provider) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the
agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.05 for purposes of holding
or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all
provisions of this Article X and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in
full herein with respect thereto.
10.02 Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.
10.03 Exculpatory Provisions.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing;
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(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c)
shall not, except as expressly set forth herein and in the other Loan Documents, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates
that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
Neither
the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or
thereby (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. Any such
action or failure to act pursuant to the foregoing shall be binding on all Lenders. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent in
writing by a Loan Party, a Lender or the L/C Issuer.
Neither the Administrative Agent nor any of its Related Parties shall be responsible
for or have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection
or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.
10.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying
upon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person,
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and shall be fully protected in relying and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance,
extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
10.05 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by
or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and
exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with
gross negligence or willful misconduct in the selection of such sub-agents.
10.06 Resignation of Administrative Agent.
The Administrative Agent may at any time, and upon the written request of either the Borrower or the Required Lenders after the Administrative
Agent (or an Affiliate thereof) becoming a Defaulting Lender, shall, give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the
consent of the Borrower (such consent not to be withheld or delayed unreasonably), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and consented to by the Borrower and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, with the consent of the Borrower (such consent not to be withheld or delayed unreasonably), appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has been consented to by the Borrower and accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall
instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Sections 3.01(c) and
3.07 and
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other than any rights to indemnity payments or other amounts owed to the retiring or retired Administrative Agent as of the date of its resignation), and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be
the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and
Section 11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as
Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by
it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender,
(ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such
Letters of Credit.
10.07 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender
or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
10.08 No Other Duties; Etc.
Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication agents, documentation agents or co-agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in
its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
10.09 Administrative Agent May File Proofs of
Claim.
In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, the Administrative Agent (irrespective of whether the principal of
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any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the
Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim
for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under the Loan Documents that are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized
by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender
or the L/C Issuer in any such proceeding.
10.10 Collateral and Guaranty Matters.
The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent to, and the Administrative Agent shall,
(a) release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon
termination of the Aggregate Revolving Commitments and payment in full of the Obligations (other than (A) contingent indemnification obligations and (B) so long as the Administrative Agent has not exercised any remedies under this
Agreement or any other Loan Document, the obligations in respect of Swap Contracts and Treasury Management Agreements) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements
satisfactory to the Administrative Agent and the L/C Issuer shall have been made), (ii) that is transferred or to be transferred as part of or in connection with any Disposition permitted hereunder or under any other Loan Document or any
Recovery Event, or (iii) as approved in accordance with Section 11.01;
(b) subordinate any Lien on any
property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.01(i); and
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(c) release any Guarantor from its obligations under the Guaranty (i) if
such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder or (ii) upon termination of the Aggregate Revolving Commitments and payment in full of the Obligations (other than (A) contingent indemnification
obligations and (B) so long as the Administrative Agent has not exercised any remedies under this Agreement or any other Loan Document, the obligations in respect of Swap Contracts and Treasury Management Agreements) and the expiration or
termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have been made).
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty, pursuant to this Section 10.10.
The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the
existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be
responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
10.11 Secured Cash Management Agreements
and Secured Hedge Agreements.
No Lender or Affiliate of a Lender (or Person that was a Lender or an Affiliate of a Lender on the date
such Person entered into such Swap Contract or Treasury Management Agreement) party to any Swap Contract or Treasury Management Agreement that obtains the benefit of the provisions of Section 9.03, the Guaranty or any Collateral by
virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including
the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case,
only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article X to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have
been made with respect to, Obligations arising under any Swap Contract or any Treasury Management Agreement except to the extent expressly provided herein and unless the Administrative Agent has received written notice of such Obligations, together
with such supporting documentation as the Administrative Agent may request, from the Lender or Affiliate of a Lender (or Person that was a Lender or an Affiliate of a Lender on the date such Person entered into such Swap Contract or Treasury
Management Agreement) party to such Swap Contract or Treasury Management Agreement, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to,
Obligations arising under any Swap Contract or any Treasury Management Agreement in the case of a Maturity Date.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that
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(a) no such amendment, waiver or consent shall:
(i) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Section 9.02) without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent set forth in Section 5.02 or of any Default or a mandatory reduction in Commitments is not
considered an extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any
other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) or any scheduled reduction of the Commitments hereunder or under any other Loan Document without
the written consent of each Lender entitled to receive such payment or whose Commitments are to be reduced;
(iii) reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender entitled to receive such amount; provided, however, that only the consent of the Required Lenders shall be necessary to (A) amend the definition of “Default Rate” or
waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (B) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(iv) change any provision of this
Section 11.01(a) or the definition of “Required Lenders”, or change Section 9.03 in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender directly
affected thereby;
(v) other than in connection with a transaction otherwise permitted by the Loan Documents, release all
or substantially all of the Collateral without the written consent of each Lender whose Obligations are secured by such Collateral; or
(vi) release the Borrower without the consent of each Lender, or, except in connection with a transaction permitted under
Section 8.04 or Section 8.05, all or substantially all of the value of the Guaranty without the written consent of each Lender whose Obligations are guaranteed thereby, except to the extent such release is permitted pursuant
to Section 10.10 (in which case such release may be made by the Administrative Agent acting alone);
(b) unless also signed by
the L/C Issuer, no amendment, waiver or consent shall directly affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it;
(c) unless also signed by the Swing Line Lender, no amendment, waiver or consent shall directly affect the rights or duties of the Swing Line
Lender under this Agreement; and
(d) unless also signed by the Administrative Agent, no amendment, waiver or consent shall directly
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
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and provided further, however, that notwithstanding anything to the contrary herein:
(i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (any amendment, waiver or
consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (A) the Commitment of such Lender may not be increased
or extended without the consent of such Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders
shall require the consent of such Defaulting Lender;
(ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein;
(iii) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding and such determination shall be binding on all of the Lenders;
(iv) the Administrative Agent may, with the consent
of the Borrower only, amend, modify or supplement this Agreement to cure any ambiguity, omission, defect or inconsistency;
(v) the Fee
Letter and any Auto Borrow Agreement may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto;
(vi) an Incremental Facility Amendment shall be effective if signed by the Loan Parties, the Administrative Agent and each Person that agrees
to provide a portion of the applicable Incremental Facility; and
(vii) a Loan Amendment shall be effective if signed by the Loan Parties,
the Administrative Agent and each relevant Accepting Lender.
11.02 Notices; Effectiveness; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except
as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to any Loan Party, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule 11.02; and
(ii) if to any other
Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative
Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).
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Notices and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by
it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.
In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender, the L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to any Loan Party, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual
damages).
(d) Change of Address, Etc. Each Loan Party, the Administrative Agent, the L/C Issuer and the Swing Line Lender may
change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to
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each Loan Party, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such
Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of
the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower
Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal
or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer
and the Lenders shall be entitled to rely and act upon any notices (including telephonic and electronic Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly given by or on behalf of any Loan Party even if
(i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. To the extent otherwise required by Section 11.04 of this Agreement, the Loan Parties shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies; Enforcement.
No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document (including the
imposition of the Default Rate) preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document
are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that
the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents,
(b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents,
(c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents,
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then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in
clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
11.04 Expenses; Indemnity; and Damage Waiver.
(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of one outside counsel for the Administrative Agent) in connection with
the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer
in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who
may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Loan Parties. The Loan
Parties shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by any Loan Party arising out of, in connection with, or as a result of any investigation, litigation or proceeding or preparation of a defense in connection therewith relating to (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby
or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in
Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any Subsidiary, or
any Environmental Liability related in any way to the Borrower or any Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by any Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith, or willful misconduct of such Indemnitee or any Related
Party of such Indemnitee or (y) result from a claim brought by any Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
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(c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing Line Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the unfunded Commitments and the outstanding Loans (with the aggregate amount of each Lender’s risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed “held” by such Lender) of all Lenders at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally
among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no Loan
Party shall assert, and each Loan Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence, bad faith or willful misconduct of such Indemnitee
as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this
Section shall be payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section and
the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
11.05 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent, the L/C Issuer or any Lender, or the
Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief
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Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
11.06
Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents
shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder
or thereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by
Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the related Loans
at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 in the case of an assignment of
a Revolving Commitment (and the related Revolving Loans thereunder) and $1,000,000 in the case of an assignment of the Term Loan unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee
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Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall
not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations in respect of its Revolving Commitment (and the
related Revolving Loans thereunder) and its outstanding Term Loan on a non-pro rata basis;
(iii) Required Consents.
No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for
assignments in respect of (1) any Term Loan Commitment or Revolving Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the Commitment subject to such assignment, an Affiliate of such Lender or an
Approved Fund with respect to such Lender and (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any
assignment in respect of Revolving Loans and Revolving Commitments.
(iv) Assignment and Assumption. The parties to
each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its
sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the
Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute
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any of the foregoing Persons described in this clause (B), or (C) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit
of, a natural person).
(vi) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with
the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to
(x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of
all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall
become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to
facts and circumstances occurring prior to the effective date of such assignment); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection
(d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and
such agency being solely for Tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register
shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available
for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent will
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record each assignment in the Register promptly following the delivery to the Administrative Agent of a copy of the executed Assignment and Assumption for such assignment and satisfaction of all
other conditions for such assignment set forth in this Section 11.06.
(d) Participations. Any Lender may at any time,
without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of,
a natural person), Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification described in the first proviso of Section 11.01(a) that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by Law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. For the
avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participation.
Each Lender that sells a participation pursuant to this Section 11.06(d), acting solely for this purpose as an agent of the
Borrower (and such agency being solely for Tax purposes), shall maintain a register comparable to the Register on which it enters the name and address of each Participant and the economic interests of each Participant in all or a portion of the
participating Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it) (the “Participant Register”); provided that no Lender shall have
any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations
under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States
Treasury Regulations. The entries in the Participant Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement, notwithstanding notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant
Register.
(e) Limitations on Participant Rights. A Participant shall not be entitled to receive any greater payment under
Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender and any such Participant shall be deemed to be a Lender for purposes of the definition of Excluded Taxes.
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(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Revolving Commitment and Revolving Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or
(ii) upon thirty days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or
Swing Line Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America
resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all
the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (1) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (2) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
(h) Notwithstanding anything to the contrary contained herein, any Lender may assign all or any portion of the Term Loan hereunder to the
Borrower, but only if:
(i) such assignment is made in connection with a Discounted Optional Prepayment in accordance with
the procedures set forth in Section 2.05(b) and open to all Lenders that hold the Term Loan on a pro rata basis;
(ii) the Term Loan so assigned shall be automatically and permanently cancelled immediately upon acquisition thereof by the
Borrower and no longer outstanding for any purpose hereunder; and
(iii) no such Discounted Optional Prepayment shall be
made with the proceeds of any Revolving Loans.
11.07 Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority
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purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to become a Lender pursuant to an Incremental Facility or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Loan Party and its obligations, (g) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and
monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. In addition, the
Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders
in connection with the administration of this Agreement, the other Loan Documents, and the Commitments
For purposes of this Section,
“Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of information received from the Borrower or any Subsidiary after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including United States federal and state securities Laws.
11.08 Set-off.
If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of such Loan Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such
Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting
Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of
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Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the
Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of
each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and
the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
11.09 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10 Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer constitute
the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 5.01,
this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties
hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
11.11 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
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11.12 Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity
and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting
Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
11.13 Replacement of Lenders.
If
(i) any Lender requests compensation under Section 3.04, (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
(iii) a Lender (a “Non-Consenting Lender”) does not consent to a proposed change, waiver, discharge or termination with respect to any Loan Document that has been approved by the Required Lenders as provided in
Section 11.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable) or (iv) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests,
rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid, or cause to be paid,
to the Administrative Agent the assignment fee specified in Section 11.06(b);
(b) such Lender shall have
received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts
under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments
required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure to consent to a proposed change,
waiver, discharge or termination with respect to any Loan Document, the applicable assignee consents to the proposed change, waiver, discharge or termination; provided that the failure by such Non-Consenting Lender to execute and deliver an
Assignment and Assumption shall not impair the validity of the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C Obligations and Swing
Line Loans pursuant to this Section 11.13 shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment and Assumption.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
11.14
Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER
LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY
OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION
OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
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(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN
THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 Waiver of Jury Trial.
EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by
the Administrative Agent, the Arrangers and the Lenders are arm’s-length commercial transactions between the Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the
other hand, (B) each of the Loan Parties has consulted its own legal, accounting, regulatory and Tax advisors to the extent it has deemed appropriate, and (C) each of the Loan Parties is capable of evaluating, and understands and accepts,
the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Arrangers and the Lenders each is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties or any of their respective Affiliates, or any other Person and (B) neither the
Administrative Agent, any Arranger nor any Lender has any obligation to the Loan Parties or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other
Loan Documents; and (iii) the Administrative Agent, the Arrangers, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their
respective Affiliates, and neither the Administrative Agent, any Arranger nor any Lender has any obligation to disclose any of such interests to the Loan Parties and their respective Affiliates. To the fullest extent permitted by Law, each of the
Loan Parties hereby waives and releases any claims that it may have against the Administrative Agent, any Arranger or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
11.17 Electronic Execution of Assignments and Certain Other Documents.
The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any
document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, Loan
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Notices, Swing Line Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic
platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary none of the Administrative Agent, the Swing Line Lender or the L/C Issuer is under any obligation to agree to
accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent, the Swing Line Lender or the L/C Issuer, as applicable, pursuant to procedures approved by it; provided, further without
limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by the corresponding manually executed counterpart.
11.18 Subordination of Intercompany Indebtedness.
Each holder of Intercompany Indebtedness (each a “Holder”) and each issuer of Intercompany Indebtedness (each a
“Maker”) agrees with the Administrative Agent and the other holders of the Obligations as follows:
(a)
Subordination. The payment of principal, interest, fees and other amounts with respect to Intercompany Indebtedness is expressly subordinated to the Obligations.
(b) Payments. If an Event of Default under Section 9.01(a) has occurred and the Administrative Agent has notified the
Borrower that it intends to exercise remedies pursuant to Section 9.02 or an Event of Default has occurred under Section 9.01(f), then, in either case, no Maker may make, and no Holder may take, demand, receive or accept, any
payment with respect to Intercompany Indebtedness.
(c) Payments Held in Trust. In the event any payment of principal or interest
or distribution of property of any Maker on or in respect of Intercompany Indebtedness shall be received by any Holder in violation of this Section 11.18, such payment or distribution shall be held in trust for the Administrative Agent,
for the benefit of the holders of the Obligations, and such Holder will forthwith turn over any such payments in the form received, properly endorsed or assigned, to the Administrative Agent, for the benefit of the holders of the Obligations.
(d) Enforcement. No Holder shall be entitled to demand payment of or accelerate any Intercompany Indebtedness or to exercise any
remedies or take any actions against any Maker to enforce any of such Holder’s rights with respect to Intercompany Indebtedness.
(e)
Collateral. No Holder will ask, demand, accept, or receive any collateral security from any Loan Party for the payment of Intercompany Indebtedness, and any collateral security for the payment of Intercompany Indebtedness that any Holder may
now or hereafter have on any property of any Loan Party is expressly subordinated to the Liens of the Administrative Agent, for the benefit of the holders of the Obligations, securing the Obligations.
(f) Attorney in Fact. Each Holder irrevocably authorizes and directs the Administrative Agent and any trustee in bankruptcy, receiver,
custodian or assignee for the benefit of creditors of any Maker, whether in voluntary or involuntary liquidation, dissolution or reorganization, in its behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided for in this Section 11.18 and irrevocably appoints, which appointment is coupled with an interest, upon the occurrence and
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during the continuation of any Event of Default, the Administrative Agent, or any such trustee, receiver, custodian or assignee, its attorneys in fact for such purpose with full powers of
substitution and revocation.
(g) Proof and Vote of Claims. Each Holder irrevocably appoints, which appointment is irrevocable and
coupled with an interest, the Administrative Agent as such Holder’s true and lawful attorney, with full power of substitution, in the name of such Holder, the Administrative Agent, the holders of the Obligations or otherwise, for the sole use
and benefit of the Administrative Agent, to the extent permitted by Law, to prove and vote all claims relating to Intercompany Indebtedness, and to receive and collect all distributions and payments to which such Holder would be otherwise entitled
on any liquidation of any Maker or any of its property or in any proceeding affecting any Maker or its property under any Debtor Relief Laws.
(h) No Interference. Each Holder agrees (i) not to take any action as the holder of Intercompany Indebtedness that will impede,
interfere with or restrict or restrain the exercise by the Administrative Agent of its rights and remedies under the Loan Documents and (ii) upon the commencement of any proceeding under Debtor Relief Laws, to take such actions as the holder of
Intercompany Indebtedness as may be reasonably necessary or appropriate to effectuate the subordination provided hereby. In furtherance thereof, each Holder, in its capacity as a holder of Intercompany Indebtedness, agrees not to oppose any motion
filed or supported by the Administrative Agent or any other holder of the Obligations for relief from stay or for adequate protection in respect of the Obligations and not to oppose any motions supported by the Administrative Agent or any other
holder of the Obligations for any Loan Party’s use of cash collateral or post petition borrowing from any of the Lenders or the Administrative Agent.
11.19 USA PATRIOT Act.
Each Lender that
is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that
will allow such Lender or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Act. The Loan Parties shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and
other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
11.20 Designated Senior Debt.
The
Borrower designates the Obligations arising under this Agreement as “Designated Senior Debt” for purposes of the Convertible Subordinated Note Indenture and any other Subordinated Indebtedness.
[SIGNATURE PAGES OMITTED]
125
EXHIBIT B
AMENDED SCHEDULE 2.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Lender |
|
Revolving
Commitment |
|
|
Revolving
Commitment
Applicable
Percentage |
|
|
Term Loan
Commitment |
|
|
Term Loan
Commitment
Applicable
Percentage |
|
| Bank of America, N.A. |
|
$ |
71,519,844.65 |
|
|
|
8.414099373 |
% |
|
$ |
69,211,854.80 |
|
|
|
8.881320715 |
% |
| JPMorgan Chase Bank, N.A. |
|
$ |
57,703,708.40 |
|
|
|
6.788671576 |
% |
|
$ |
56,296,291.60 |
|
|
|
7.223985288 |
% |
| PNC Bank, National Association |
|
$ |
57,703,708.40 |
|
|
|
6.788671576 |
% |
|
$ |
56,296,291.60 |
|
|
|
7.223985288 |
% |
| Royal Bank of Canada |
|
$ |
57,703,708.40 |
|
|
|
6.788671576 |
% |
|
$ |
56,296,291.60 |
|
|
|
7.223985288 |
% |
| SunTrust Bank |
|
$ |
57,703,708.40 |
|
|
|
6.788671576 |
% |
|
$ |
56,296,291.60 |
|
|
|
7.223985288 |
% |
| Wells Fargo Bank, National Association |
|
$ |
57,703,708.40 |
|
|
|
6.788671576 |
% |
|
$ |
56,296,291.60 |
|
|
|
7.223985288 |
% |
| The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
|
$ |
50,244,912.71 |
|
|
|
5.911166201 |
% |
|
$ |
49,755,087.29 |
|
|
|
6.384612705 |
% |
| Fifth Third Bank |
|
$ |
50,244,912.71 |
|
|
|
5.911166201 |
% |
|
$ |
49,755,087.29 |
|
|
|
6.384612705 |
% |
| Regions Bank |
|
$ |
34,957,171.78 |
|
|
|
4.112608445 |
% |
|
$ |
35,196,401.47 |
|
|
|
4.516430464 |
% |
| Sumitomo Mitsui Banking Corporation, New York |
|
$ |
34,957,171.78 |
|
|
|
4.112608445 |
% |
|
$ |
35,196,401.47 |
|
|
|
4.516430464 |
% |
| Citizens Bank of Pennsylvania |
|
$ |
31,340,912.63 |
|
|
|
3.687166192 |
% |
|
$ |
31,555,394.42 |
|
|
|
4.049213520 |
% |
| Barclays Bank PLC |
|
$ |
60,000,000.00 |
|
|
|
7.058823529 |
% |
|
$ |
0.00 |
|
|
|
0.000000000 |
% |
| TD Bank, N.A. |
|
$ |
29,943,142.01 |
|
|
|
3.522722589 |
% |
|
$ |
30,056,857.99 |
|
|
|
3.856920123 |
% |
| Branch Banking and Trust Company |
|
$ |
30,008,396.31 |
|
|
|
3.530399566 |
% |
|
$ |
29,991,603.69 |
|
|
|
3.848546639 |
% |
| Capital One National Association |
|
$ |
24,108,394.33 |
|
|
|
2.836281686 |
% |
|
$ |
24,273,380.32 |
|
|
|
3.114779630 |
% |
| Goldman Sachs Bank USA |
|
$ |
25,000,000.00 |
|
|
|
2.941176471 |
% |
|
$ |
25,000,000.00 |
|
|
|
3.208020050 |
% |
| Synovus Bank |
|
$ |
12,054,197.17 |
|
|
|
1.418140844 |
% |
|
$ |
12,136,690.13 |
|
|
|
1.557389811 |
% |
| The Northern Trust Company |
|
$ |
9,643,357.73 |
|
|
|
1.134512674 |
% |
|
$ |
9,709,352.12 |
|
|
|
1.245911851 |
% |
| Stifel Bank & Trust |
|
$ |
12,589,534.51 |
|
|
|
1.481121707 |
% |
|
$ |
12,410,465.49 |
|
|
|
1.592520885 |
% |
| First Commonwealth Bank |
|
$ |
8,498,209.00 |
|
|
|
0.999789294 |
% |
|
$ |
8,556,366.55 |
|
|
|
1.097959818 |
% |
| The Bank of East Asia, Limited, New York Branch |
|
$ |
12,702,759.85 |
|
|
|
1.494442335 |
% |
|
$ |
12,297,240.15 |
|
|
|
1.577991718 |
% |
| E. Sun Commercial Bank, Ltd., Los Angeles Branch |
|
$ |
7,232,518.30 |
|
|
|
0.850884506 |
% |
|
$ |
7,282,014.10 |
|
|
|
0.934433890 |
% |
| Hua Nan Commercial Bank, Ltd. |
|
$ |
7,485,785.50 |
|
|
|
0.880680647 |
% |
|
$ |
7,514,214.50 |
|
|
|
0.964230031 |
% |
| Mega International Commercial Bank Co., Ltd., New York Branch |
|
$ |
9,050,877.81 |
|
|
|
1.064809154 |
% |
|
$ |
8,949,122.19 |
|
|
|
1.148358537 |
% |
| Taiwan Business Bank Co., Ltd., a Republic of China Bank acting through its Los Angeles Branch |
|
$ |
7,232,518.30 |
|
|
|
0.850884506 |
% |
|
$ |
7,282,014.10 |
|
|
|
0.934433890 |
% |
| Taiwan Cooperative Bank Ltd. Seattle Branch |
|
$ |
7,232,518.30 |
|
|
|
0.850884506 |
% |
|
$ |
7,282,014.10 |
|
|
|
0.934433890 |
% |
| Chang Hwa Commercial Bank, Ltd., New York Branch |
|
$ |
7,599,010.84 |
|
|
|
0.894001275 |
% |
|
$ |
7,400,989.16 |
|
|
|
0.949700865 |
% |
| Manufacturers Bank |
|
$ |
4,990,523.66 |
|
|
|
0.587120431 |
% |
|
$ |
5,009,476.34 |
|
|
|
0.642820022 |
% |
| Xenith Bank |
|
$ |
2,410,839.43 |
|
|
|
0.283628168 |
% |
|
$ |
2,427,338.02 |
|
|
|
0.311477961 |
% |
| Land Bank of Taiwan, New York Branch |
|
$ |
10,433,948.69 |
|
|
|
1.227523375 |
% |
|
$ |
9,566,051.31 |
|
|
|
1.227523376 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total: |
|
$ |
850,000,000.00 |
|
|
|
100.000000000 |
% |
|
$ |
779,296,875.00 |
|
|
|
100.000000000 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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