BGS B and G Foods Inc

 

As filed with the Securities and Exchange Commission on September 26, 2023

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported):  September 22, 2023

 

	B&G Foods, Inc.
(Exact name of Registrant as specified in its charter)

 

Delaware		001-32316		13-3918742
(State or Other Jurisdiction		(Commission		(IRS Employer
of Incorporation)		File Number)		Identification No.)

 

Four Gatehall Drive, Parsippany, New Jersey		07054
(Address of Principal Executive Offices)		(Zip Code)

 

Registrant’s telephone number, including area code:  (973) 401-6500

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class	Trading Symbol	Name of each exchange on which registered
Common Stock, par value $0.01 per share	BGS	New York Stock Exchange

 

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:

 

¨

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company  ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ¨

 

 

 

Item 1.01.

Entry into a Material Definitive Agreement.

Item 2.03.

Creation of a Direct Financial Obligation.

 

Amendment to Credit Agreement. On September 22, 2023, we amended our amended and restated credit agreement, dated as of October 2, 2015, and previously amended on March 30, 2017, November 20, 2017, October 10, 2019, December 16, 2020, June 28, 2022 and June 6, 2023, among B&G Foods, as borrower, the several banks and other financial institutions or entities from time to time party thereto as lenders and Barclays Bank PLC, as administrative agent and collateral agent. In the remainder of this report, we refer to the amended and restated credit agreement as so amended, as our credit agreement.

 

The amendment permits us to incur first lien secured debt in the form of notes or term loans outside of our credit agreement on a pari passu basis with the indebtedness under our credit agreement if certain conditions are met. The amendment also reduces the current amount of the “available amount” (as defined in the credit agreement) available for certain restricted payments to $600 million as of the end of the second quarter of fiscal 2023, and adds certain collateral-related protections for the lenders (commonly known as “Serta protections”).

 

The description above is only a summary of the material provisions of the amendment and is qualified in its entirety by reference to the full text of the amendment, which is filed as Exhibit 10.1 to this report and incorporated by reference herein.

 

Closing of Senior Secured Notes Offering. On September 26, 2023, B&G Foods issued a press release announcing the closing of our private offering of $550.0 million aggregate principal amount of 8.000% senior secured notes due 2028 in a transaction exempt from registration under the Securities Act of 1933, as amended. The senior secured notes were issued at a price of 99.502%.

 

We intend to use the net proceeds of the offering, together with cash on hand, to redeem $555.4 million aggregate principal amount of our 5.25% senior notes due 2025 and pay related fees and expenses.

 

The 8.000% senior secured notes due 2028 and the related guarantees have not been and will not be registered under the Securities Act, any state securities laws or the securities laws of any other jurisdiction and the 8.000% senior secured notes due 2028 and the related guarantees may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable securities laws of any state or other jurisdiction.

 

This current report does not constitute a redemption notice with respect to the 5.25% senior notes due 2025 and shall not constitute an offer to sell or a solicitation of an offer to buy the 8.000% senior secured notes due 2028 and the related guarantees, nor shall there be any sale of the 8.000% senior secured notes due 2028 and the related guarantees in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

 

On September 26, 2023, B&G Foods entered into an indenture among B&G Foods, certain subsidiaries of B&G Foods as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee and notes collateral agent, relating to the 8.000% senior secured notes due 2028. On September 26, 2023, we also (1) entered into a collateral agreement among B&G Foods and certain subsidiaries of B&G Foods as grantors in favor of The Bank of New York Mellon Trust Company, N.A., as notes collateral agent and (2) acknowledged and agreed to a pari passu intercreditor agreement among Barclays Bank PLC and The Bank of New York Mellon Trust Company, N.A.

 

 

Interest on the 8.000% senior secured notes due 2028 is payable on March 15 and September 15 of each year, commencing March 15, 2024. The 8.000% senior secured notes due 2028 will mature on September 15, 2028, unless earlier retired or redeemed as described below.

 

We may redeem some or all of the 8.000% senior secured notes due 2028 at a redemption price of 104.000% on or after September 15, 2025, 102.000% on or after September 15, 2026 and 100.000% on or after September 15, 2027, in each case plus accrued and unpaid interest to (but not including) the date of redemption. We may redeem up to 40% of the aggregate principal amount of the 8.000% senior secured notes due 2028 prior to September 15, 2025 at a redemption price of 108.000% plus accrued and unpaid interest to (but not including) the date of redemption with the net proceeds from certain equity offerings. We may also redeem some or all of the 8.000% senior secured notes due 2028 at any time prior to September 15, 2025 at a redemption price equal to the make-whole amount set forth in the indenture plus accrued and unpaid interest to (but not including) the date of redemption. In addition, if B&G Foods undergoes a change of control, we may be required to offer to repurchase the 8.000% senior secured notes due 2028 at 101.000% of the aggregate principal amount, plus accrued and unpaid interest to (but not including) the date of repurchase.

 

The 8.000% senior secured notes due 2028 are our senior secured obligations and are jointly and severally and fully and unconditionally guaranteed on a senior secured basis by each of our existing and future domestic subsidiaries (other than immaterial subsidiaries). The 8.000% senior secured notes due 2028 notes have the same guarantors as our credit agreement. The 8.000% senior secured notes due 2028 notes and the related guarantees are secured by, subject to permitted liens, first-priority security interests in certain collateral (which generally includes most of our and our guarantors’ right or interest in or to property of any kind, except for our and our guarantors’ real property and certain intangible assets), which assets also secure (and will continue to secure) our credit agreement on a pari passu basis. Pursuant to the terms of the indenture, the collateral agreement and the intercreditor agreement, the 8.000% senior secured notes due 2028 notes and the guarantees rank (1) pari passu (equally and ratably) in right of payment to all of our and the guarantors’ existing and future senior debt, including existing and future senior debt under our existing or any future senior secured credit agreement (including the term loan borrowings under our existing senior secured credit facility, any obligations under our existing revolving credit facility and all other borrowings and obligations under our credit agreement), (2) effectively senior in right of payment to our and such guarantors’ existing and future senior unsecured debt, including our 5.25% senior notes due 2025 and 5.25% senior notes due 2027 to the extent of the value of the collateral, (3) effectively junior to our and the guarantors’ future secured debt, secured by assets that do not constitute collateral, to the extent of the value of the collateral securing such debt, (4) senior in right of payment to our and such guarantors’ other existing and future subordinated debt and (5) structurally subordinated to all existing and future indebtedness and other liabilities of our subsidiaries that do not guarantee the 8.000% senior secured notes due 2028.

 

 

The indenture governing the 8.000% senior secured notes due 2028 contains covenants with respect to us and the guarantors and restricts the incurrence of additional indebtedness and the issuance of capital stock; the payment of dividends or distributions on, and redemption of, capital stock; a number of other restricted payments, including certain investments; creation of certain liens; certain sale-leaseback transactions; and certain asset sales; fundamental changes, including consolidation, mergers and transfers of all or substantially all of our assets; and specified transactions with affiliates. Each of the covenants is subject to a number of important exceptions and qualifications. Further, the indenture provides for customary events of default, which include, among others, nonpayment of principal or interest, breach of other agreements in the indenture or the security documents, failure to pay certain other indebtedness, failure of certain guarantees to be enforceable, failure to pay certain final judgments, and certain events of bankruptcy or insolvency.

 

The description above is only a summary of the material provisions of the indenture, the 8.000% senior secured notes due 2028 and the collateral agreement, and is qualified in its entirety by reference to the full text of the indenture, the 8.000% senior secured notes due 2028 and the collateral agreement, which are filed as Exhibits 4.1, 4.2 and 10.2, respectively, to this report and are incorporated herein by reference.

 

A copy of the press release announcing the closing of the offering is attached to this report as Exhibit 99.1 and is incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)            Exhibits.

 

	4.1	Indenture, dated as of September 26, 2023, among B&G Foods, Inc., the Guarantors (as defined therein), and The Bank of New York Mellon Trust Company, N.A., as trustee and notes collateral agent, relating to the 8.000% senior secured notes due 2028
	4.2	Form of 8.000% Senior Secured Notes due 2028 (included in Exhibit 4.1)
	10.1	Seventh Amendment to Credit Agreement dated as of September 22, 2023, to the Amended and Restated Credit Agreement, dated as of October 2, 2015, as amended, among B&G Foods, Inc., as borrower, the subsidiaries of B&G Foods, Inc. from time to time party thereto as guarantors, the several banks and other financial institutions or entities from time to time party thereto as lenders and Barclays Bank PLC, as administrative agent for the lenders and as collateral agent for the secured parties
	10.2	Collateral Agreement, dated as of September 26, 2023, among B&G Foods, Inc. and certain subsidiaries of B&G Foods, Inc. from time to time party thereto, as grantors in favor of The Bank of New York Mellon Trust Company, N.A., as notes collateral agent
	99.1	Press Release dated September 26, 2023
	104	The cover page from this Current Report on Form 8-K, formatted in Inline XBRL

 

 

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.

 

	B&G FOODS, INC.
Dated:  September 26, 2023	By:	/s/ Scott E. Lerner
		Scott E. Lerner
		Executive Vice President,
		General Counsel and Secretary

 

 

 

Exhibit 4.1

 

Execution Version

 

 

 

B&G FOODS, INC.

 

and each of the Guarantors PARTY HERETO

 

8.000% SENIOR SECURED NOTES DUE 2028

 

 

INDENTURE

 

Dated as of September 26, 2023

 

 

The Bank of New York Mellon Trust Company, N.A.

 

Trustee and Notes Collateral Agent

 

 

 

 

TABLE OF CONTENTS

 

 

Page
ARTICLE 1 DEFINITIONS
Section 1.01      Definitions	1
Section 1.02      Other Definitions	26
Section 1.03      Rules of Construction	27
ARTICLE 2 THE NOTES
Section 2.01      Form and Dating	28
Section 2.02      Execution and Authentication	29
Section 2.03      Registrar and Paying Agent	30
Section 2.04      Paying Agent to Hold Money in Trust	30
Section 2.05      Holder Lists	31
Section 2.06      Transfer and Exchange	31
Section 2.07      Replacement Notes	33
Section 2.08      Outstanding Notes	33
Section 2.09      Treasury Notes	34
Section 2.10      Temporary Notes	34
Section 2.11      Cancellation	34
Section 2.12      Defaulted Interest	34
Section 2.13      CUSIP Numbers	35
Section 2.14      Special Transfer Provisions	35
Section 2.15      Issuance of Additional Notes	36
ARTICLE 3 REDEMPTION AND PREPAYMENT
Section 3.01      Notices to Trustee	37
Section 3.02      Selection of Notes to Be Redeemed or Purchased	37
Section 3.03      Notice of Redemption	38
Section 3.04      Effect of Notice of Redemption	38
Section 3.05      Deposit of Redemption or Purchase Price	39
Section 3.06      Notes Redeemed or Purchased in Part	39
Section 3.07      Optional Redemption	39
Section 3.08      Mandatory Redemption	40
Section 3.09      Offer to Purchase by Application of Excess Proceeds	40
ARTICLE 4 COVENANTS
Section 4.01      Payment of Notes	42
Section 4.02      Maintenance of Office or Agency	42
Section 4.03      Reports	43
Section 4.04      Compliance Certificate	45
Section 4.05      [Reserved]	45
Section 4.06      [Reserved]	45
Section 4.07      Restricted Payments	45
Section 4.08      Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	49
Section 4.09      Incurrence of Indebtedness and Issuance of Preferred Stock	50

 

 

Section 4.10      Asset Sales	54
Section 4.11      Transactions with Affiliates	56
Section 4.12      Liens	58
Section 4.13      Business Activities	58
Section 4.14      [Reserved]	58
Section 4.15      Offer to Repurchase Upon Change of Control	58
Section 4.16      [Reserved]	59
Section 4.17      Limitation on Sale and Leaseback Transactions	59
Section 4.18      [Reserved]	60
Section 4.19      Additional Note Guarantees	60
Section 4.20      Designation of Restricted and Unrestricted Subsidiaries	60
Section 4.21      Effectiveness of Covenants	61

 

ARTICLE 5 SUCCESSORS
Section 5.01      Merger, Consolidation, or Sale of Assets	62
Section 5.02      Successor Corporation Substituted	63
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01      Events of Default	63
Section 6.02      Acceleration	65
Section 6.03      Other Remedies	65
Section 6.04      Waiver of Past Defaults	65
Section 6.05      Control by Majority	66
Section 6.06      Limitation on Suits	66
Section 6.07      Rights of Holders to Receive Payment	66
Section 6.08      Collection Suit by Trustee	67
Section 6.09      Trustee May File Proofs of Claim	67
Section 6.10      Priorities	67
Section 6.11      Undertaking for Costs	68
ARTICLE 7 TRUSTEE
Section 7.01      Duties of Trustee	68
Section 7.02      Rights of Trustee	69
Section 7.03      Individual Rights of Trustee	70
Section 7.04      Trustee’s Disclaimer	70
Section 7.05      Notice of Defaults	70
Section 7.06      [Reserved]	70
Section 7.07      Compensation and Indemnity	70
Section 7.08      Replacement of Trustee	71
Section 7.09      Successor Trustee or Notes Collateral Agent by Merger, etc.	72
Section 7.10      Eligibility; Disqualification	72
Section 7.11      Limitation on Duty of Trustee in Respect of Collateral; Indemnification	72
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01      Option to Effect Legal Defeasance or Covenant Defeasance	73
Section 8.02      Legal Defeasance and Discharge	73
Section 8.03      Covenant Defeasance	74

 

 

Section 8.04      Conditions to Legal or Covenant Defeasance	74
Section 8.05      Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	75
Section 8.06      Repayment to Company	76
Section 8.07      Reinstatement	76

 

ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01      Without Consent of Holders	76
Section 9.02      With Consent of Holders	77
Section 9.03      [Reserved]	79
Section 9.04      Revocation and Effect of Consents	79
Section 9.05      Notation on or Exchange of Notes	79
Section 9.06      Trustee and Notes Collateral Agent to Sign Amendments, etc.	79
ARTICLE 10 Collateral
Section 10.01      Secured Notes Obligations; Security Documents	79
Section 10.02      Release of Collateral	81
Section 10.03      Suits to Protect the Collateral	81
Section 10.04      Authorization of Receipt of Funds by the Trustee under the Security Documents	82
Section 10.05      Purchaser Protected	82
Section 10.06      Powers Exercisable by Receiver or Trustee	82
Section 10.07      Collateral Agent	82
Section 10.08      Voting	88
Section 10.09      No Impairment of the Security Interests	88
ARTICLE 11 NOTE GUARANTEES
Section 11.01      Guarantee	88
Section 11.02      Limitation on Guarantor Liability	89
Section 11.03      Execution and Delivery of Note Guarantee	90
Section 11.04      Guarantors May Consolidate, etc., on Certain Terms	90
Section 11.05      Releases	91
ARTICLE 12 Satisfaction and Discharge
Section 12.01      Satisfaction and Discharge	92
Section 12.02      Application of Trust Money	93

 

ARTICLE 13 MISCELLANEOUS
Section 13.01      [Reserved]	93
Section 13.02      Notices	94
Section 13.03      [Reserved]	95
Section 13.04      Certificate and Opinion as to Conditions Precedent	95
Section 13.05      Statements Required in Certificate or Opinion	96
Section 13.06      Rules by Trustee and Agents	96
Section 13.07      No Personal Liability of Directors, Officers, Employees, Affiliates and Stockholders	96
Section 13.08      Governing Law	96
Section 13.09      No Adverse Interpretation of Other Agreements	96

 

 

Section 13.10      Successors	96
Section 13.11      Severability	97
Section 13.12      Counterpart Originals	97
Section 13.13      Table of Contents, Headings, etc.	97
Section 13.14      Waiver of Jury Trial	97
Section 13.15      Force Majeure	97
Section 13.16      Consent to Jurisdiction	97
Section 13.17      Foreign Account Tax Compliance Act (FATCA)	98

 

EXHIBITS

 

Exhibit A             FORM OF NOTE

Exhibit B             FORM OF NOTATION OF GUARANTEE

Exhibit C             FORM OF SUPPLEMENTAL INDENTURE

Exhibit D             FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A

Exhibit E              FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S

 

 

INDENTURE dated as September 26, 2023 among B&G Foods, Inc., a Delaware corporation (the “Company”), the Guarantors (as defined) and The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as trustee (the “Trustee”) and as notes collateral agent (“Notes Collateral Agent”).

 

WHEREAS, the Company has duly authorized the issuance of $550,000,000 aggregate principal amount of its 8.000% Senior Secured Notes due 2028 on the Issue Date (the “Initial Notes”). The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined below) of the Notes (as defined below).

 

ARTICLE 1
DEFINITIONS

  

Section 1.01           Definitions.

 

“2025 Senior Notes” means B&G Foods 5.25% Senior Notes due 2025.

 

“2025 Senior Notes Indenture” means the indenture relating to the 2025 Senior Notes dated June 4, 2013, as amended or supplemented from time to time.

 

“2027 Senior Notes” means B&G Foods 5.25% Senior Notes due 2027.

 

“2027 Senior Notes Indenture” means the indenture relating to the 2027 Senior Notes dated September 26, 2019, as amended or supplemented from time to time.

 

“Acquired Debt” means, with respect to any specified Person:

 

(1)           Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

 

(2)           Indebtedness secured by a Lien encumbering any asset acquired by such specified Person,

 

provided that the amount of Acquired Debt only at the time so acquired will include the accreted value together with any interest thereon that is more than 30 days past due; provided, further, that Indebtedness of such other Person that is redeemed, defeased, retired or otherwise repaid at the time, or immediately upon consummation, of the transaction by which such other Person is merged with or into or became a Restricted Subsidiary of such Person will not be Acquired Debt.

 

“Additional Notes” means Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.02 and 2.15 hereof, as part of the same series as the Initial Notes.

 

“Additional Pari Passu Obligations” means all obligations of the Company and the Guarantors that shall have been designated as such pursuant to the Intercreditor Agreement.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

 

“Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.

 

“Applicable Premium” means, with respect to any Notes on any redemption date, the greater of:

 

(1)           1.0% of the principal amount of the Notes; or

 

(2)           the excess of:

 

(a)            the present value at such redemption date of (i) the redemption price of the Notes at September 15, 2025, (such redemption price being set forth in the table in Section 3.07 hereof) plus (ii) all required interest payments due on the Notes through September 15, 2025, (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over

 

(b)            the principal amount of the Notes.

 

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

 

“Asset Sale” means:

 

(1)           the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by Section 4.15 hereof and/or Section 5.01 hereof and not Section 4.10 hereof; and

 

(2)           the issuance or sale of Equity Interests in any of the Company’s Restricted Subsidiaries (other than directors’ qualifying shares or shares required by applicable law to be held by a Person other than the Company or a Restricted Subsidiary).

 

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

 

(1)            any single transaction or series of related transactions that involves (a) assets having a Fair Market Value of less than $5.0 million or (b) Net Proceeds of less than $5.0 million;

 

(2)            a transfer of assets between or among the Company and its Restricted Subsidiaries;

 

(3)            an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;

 

(4)            the sale, lease, conveyance or other disposition of products, services, inventory, equipment or accounts receivable in the ordinary course of business, including any sale or other disposition of damaged, worn-out, obsolete, negligible or surplus assets in the ordinary course of business;

 

(5)            the sale or other disposition of cash or Cash Equivalents;

 

 

(6)            the surrender or waiver of contract rights, the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business, and the granting of (or permitted realization of) Liens not prohibited by this Indenture;

 

(7)            a Restricted Payment that complies with Section 4.07 hereof or a Permitted Investment;

 

(8)            sales or grants of licenses or sublicenses of intellectual property, and licenses, leases or subleases of other assets, of the Company or any of its Restricted Subsidiaries to the extent not materially interfering with the business of the Company and its Restricted Subsidiaries;

 

(9)            any exchange of like-kind property pursuant to Section 1031 of the Code that are used or useful in a Permitted Business;

 

(10)          the abandonment of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Company or any of its Restricted Subsidiaries are not material to the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole;

 

(11)          foreclosures, condemnation or any similar action on assets or the granting of a Lien that is permitted under Section 4.12 hereof;

 

(12)          any liquidation or dissolution of a Restricted Subsidiary, provided that such Restricted Subsidiary’s direct parent is also either the Company or a Restricted Subsidiary of the Company and immediately becomes the owner of such Restricted Subsidiary’s assets;

 

(13)          any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

 

(14)          any financing transaction with respect to real property constructed, acquired, replaced, repaired or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by the Company or any Restricted Subsidiary after the date of this Indenture, including sale and lease-back transactions permitted by this Indenture; and

 

(15)          sales, transfers and other dispositions of Investments in joint ventures to the extent required by customary buy/sell arrangements between the joint venture parties as set forth in joint venture agreements.

 

“Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capital Lease Obligation.”

 

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.

 

 

“Board of Directors” means:

 

(1)            with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

(2)            with respect to a partnership, the Board of Directors of the general partner of the partnership;

 

(3)            with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

 

(4)            with respect to any other Person, the board or committee of such Person serving a similar function.

 

“Business Day” means any day other than a Legal Holiday.

 

“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty. Capital Lease Obligation shall exclude all operating lease and non-finance lease liabilities that are required to be capitalized and reflected as liabilities in the balance sheet in accordance with GAAP.

 

“Capital Stock” means:

 

(1)            in the case of a corporation, corporate stock;

 

(2)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(3)            in the case of a partnership or limited liability company, partnership interests or membership interests (whether general or limited); and

 

(4)            any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

“Cash Equivalents” means:

 

(1)            United States dollars and Canadian dollars;

 

(2)            securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than one year from the date of acquisition;

 

 

(3)            certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better;

 

(4)            repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

 

(5)            commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within one year after the date of acquisition;

 

(6)            money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition; and

 

(7)            readily marketable direct obligations issued by any State of the United States of America or any political subdivision thereof having maturities of not more than one year from the date of acquisition and having one of the two highest rating categories obtainable from either Moody’s or S&P.

 

“Certificated Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

“Change of Control” means the occurrence of any of the following:

 

(1)            the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than a Principal or a Related Party of a Principal;

 

(2)            the adoption of a plan relating to the liquidation or dissolution of the Company; or

 

(3)            the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as defined above), other than the Principals and their Related Parties, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares.

 

“Clearstream” means Clearstream Banking, S.A.

 

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

 

“Collateral” means any and all assets and properties subject to, or purported to be subject to, any Security Document to secure one or more series of Pari Passu Obligations and shall include any property or assets subject to replacement Liens or adequate protection Liens in favor of any Collateral Agent or Secured Party.

 

“Collateral Agents” means the Credit Agreement Collateral Agent, the Notes Collateral Agent and each additional Collateral Agent.

 

 

“Company” means B&G Foods, Inc. and any and all successors thereto.

 

“Consolidated EBITDA” means with respect to any specified Person for any period, Consolidated Net Income of such Person and its Subsidiaries for such period plus, without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) consolidated interest expense of such Person and its Subsidiaries, amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business), (f) the amount of any non-cash compensation deduction as the result of any potential grant of Capital Stock or other Equity Interests to employees, officers, directors or consultants and (g) any other non-cash charges, and minus, to the extent included in the statement of such Consolidated Net Income for such period, the sum of (a) interest income (except to the extent deducted in determining consolidated interest expense), (b) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business), and (c) any other non-cash income, all as determined on a consolidated basis.

 

“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

 

(1)            the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

 

(2)            the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income to such Person and its Restricted Subsidiaries is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

 

(3)            the cumulative effect of a change in accounting principles will be excluded;

 

(4)            any unrealized gains and with respect to Hedging Obligations for such period will be excluded;

 

(5)            any unrealized gains and losses related to fluctuations in currency exchange rates for such period will be excluded;

 

(6)            any gains and losses from any early extinguishment of Indebtedness will be excluded;

 

(7)            any gains and losses from any redemption or repurchase premiums paid with respect to the Notes will be excluded; and

 

 

(8)            any deferred financing costs (including the amortization of original issue discount) associated with Indebtedness of the Company will be excluded.

 

“Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Secured Debt on such day to (b) Consolidated EBITDA of the Company and its Subsidiaries for such period, calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.

 

“continuing” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.

 

“Copyright Licenses” means all written agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor grants or receives a license or similar right in, to, or under any Copyright, or otherwise providing for a covenant not to sue for infringement or other violation of any Copyright.

 

“Copyrights” means all United States and foreign copyrights, whether registered or unregistered and whether published or unpublished, and (i) all registrations and applications therefor, (ii) all extensions and the right to obtain all renewals thereof, (iii) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (iv) all proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and (v) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

“Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company.

 

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of October 2, 2015 by and among the Company, Barclays Bank PLC, as administrative agent and collateral agent, and the lenders from time to time party thereto, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time, including by that certain First Amendment to the Credit Agreement, dated as of March 30, 2017, that certain Second Amendment to the Credit Agreement, dated as of November 20, 2017, that certain Third Amendment to Credit Agreement dated as of October 10, 2019, that certain Fourth Amendment to the Credit Agreement dated as of December 16, 2020, that certain Fifth Amendment to the Credit Agreement dated as of June 28, 2022, that certain Sixth Amendment to the Credit Agreement, dated as of June 6, 2023 and that certain Seventh Amendment to the Credit Agreement dated as of September 22, 2023.

 

“Credit Agreement Collateral Agent” means Barclays Bank PLC, together with any successor thereto or assignee in respect thereto, in its capacity as collateral agent for the Credit Agreement Secured Parties.

 

“Credit Agreement Obligations” has the meaning assigned to the term “Obligations” in the Credit Agreement, together with any refinancing thereof.

 

“Credit Agreement Secured Parties” has the meaning assigned to the term “Secured Parties” in the Credit Agreement, together with any refinancing thereof.

 

 

“Credit Facilities” means, one or more debt facilities (including, without limitation, the Credit Agreement) or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), letters of credit or other long-term indebtedness including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or replacements in any manner (whether upon or after termination or otherwise) or refinancings thereof (including by means of sales of debt securities to institutional investors) in whole or in part from time to time and any debt facilities or other financing arrangements (including, without limitation, commercial paper facilities or indentures) that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase is permitted under Section 4.09 hereof) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.

 

“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

 

“Default” means any event that is, or with the passage of time or the giving of written notice or both would be, an Event of Default.

 

“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

 

“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Company, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

 

“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

 

 

“Domestic Subsidiaries” means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia.

 

“Electronic Means” shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

 

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“Equity Offering” means a public or private sale either (1) of Equity Interests of the Company by the Company (other than Disqualified Stock and other than to a Subsidiary of the Company or pursuant to a registration statement on Form S-8 or otherwise relating to equity securities issuable under any employee benefit plan of the Company) or (2) of Equity Interests of a direct or indirect parent entity of the Company (other than to the Company or a Subsidiary of the Company) to the extent that the net proceeds therefrom are contributed to the common equity capital of the Company.

 

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

 

“Excess Cash” means, with respect to any specified Person for any period, the Consolidated EBITDA of that Person for such period, minus the sum of the following, each determined for such period on a consolidated basis:

 

(1)            cash income taxes paid for such Person and its Restricted Subsidiaries; plus

 

(2)            cash interest expense paid by such Person and its Restricted Subsidiaries, whether or not capitalized (including, without limitation, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates); plus

 

(3)            additions to property, plant and equipment and other capital expenditures of such Person and its Restricted Subsidiaries that are (or would be) set forth in a consolidated statement of cash flows of such Person and its Restricted Subsidiaries for such period prepared in accordance with GAAP, except to the extent financed by the incurrence of Indebtedness; plus

 

(4)            the aggregate principal amount of long-term Indebtedness repaid by such Person and its Restricted Subsidiaries and the repayment by such Person and any Restricted Subsidiary of any short-term Indebtedness that financed capital expenditures referred to in clause (3) above, excluding any such repayments (a) under working capital facilities (except to the extent that such Indebtedness so repaid was incurred to finance capital expenditures as described in clause (3) above), (b) out of Net Proceeds of Asset Sales as provided in Section 3.09 hereof, (c) through a refinancing involving the incurrence of new long-term Indebtedness and (d) to the extent not included in clause (c), of the redemption of a portion of the 2025 Notes and/or repayment of revolving loans under the Credit Agreement with the proceeds of the offering of the Notes on or about the date of this Indenture; provided that the aggregate amount of repayments made pursuant to this clause (d) does not exceed the amount of the net proceeds received in connection with the offering of the Notes.

 

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Excluded Assets” means:

 

(a)            any Capital Stock of any Foreign Subsidiary or Foreign Subsidiary Holding Company that is directly owned by one or more of the Company or any of the Guarantor in excess of 65% of the voting Capital Stock of such Foreign Subsidiary or Foreign Subsidiary Holding Company, as applicable;

 

(b)            any Capital Stock of any Foreign Subsidiary or Foreign Subsidiary Holding Company that is not directly owned by the Company or any of the Guarantors;

 

(c)            any real property and any interests therein;

 

(d)            any contract, General Intangible, Intellectual Property, Copyright License, Patent License, Trademark License or Trade Secret License (“Intangible Assets”), if and only for so long as the grant of a security interest hereunder (A) is prohibited by any law, rule or regulation applicable to the Company or any of the Guarantors, (B) requires a consent from any Governmental Authority that has not been made or obtained or (C) shall constitute or result in a breach, contractual violation, termination or default of any term or provision of any such Intangible Assets (other than to the extent that any such law, rule or regulation, requirement to obtain consent, term or provision, as applicable, would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or any other applicable law or principles of equity); provided, however, that the Collateral shall include (and such security interest shall attach) immediately (A) at such time as such law, rule, regulation, requirement to obtain consent, term or provision, as applicable, shall no longer be applicable to such Intangible Assets and (B) to the extent severable, any portion of such Intangible Assets that does not result in any of the consequences specified above;

 

(e)            any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law;

 

(f)            any personal property now owned or hereafter acquired by the Company or any of the Guarantors that is subject to a purchase money Lien or a capital lease permitted under this Indenture if the contractual obligation pursuant to which such Lien is granted (or the documentation providing for such purchase money Lien or capital lease) prohibits the creation by the Company or any of the Guarantor of a Lien thereon or requires the consent of any Person other than the Company and its Affiliates, which consent has not been obtained, as a condition to the creation of any other Lien on such property;

 

(g)            any deposit account established solely for the purpose of funding payroll, payroll taxes and other compensation and benefits to employees; and

 

(h)            any asset as to which the Company reasonably determines that the costs (time, expense or otherwise) of obtaining a security interest in or Lien upon such assets are excessive in relation to the benefits to the Secured Parties of the security afforded thereby; provided that such assets do not secure the Credit Agreement.

 

 

“Existing Indebtedness” means Indebtedness of the Company and its Restricted Subsidiaries in existence on the date hereof, other than the Notes and Indebtedness under the Credit Agreement outstanding immediately following the execution of this Indenture (but including, for the avoidance of doubt, the Existing Notes).

 

“Existing Notes” means the 2025 Senior Notes and the 2027 Senior Notes, collectively.

 

“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Company (unless otherwise provided in this Indenture).

 

“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.

 

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

 

(1)            acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period, and Consolidated EBITDA for such reference period will be calculated on a pro forma basis (including with respect to any cost savings so long as such cost savings are factually supportable and expected to have a continuing effect on such Person or any of its Restricted Subsidiaries);

 

(2)            the Consolidated EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;

 

(3)            the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

 

(4)            any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

 

(5)            any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and

 

 

(6)            if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months).

 

“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:

 

(1)            the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates (but excluding amortization of deferred financing costs, original issue discount and any redemption or repurchase premiums paid with respect to the Notes); plus

 

(2)            the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

 

(3)            any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus

 

(4)            the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP; minus

 

(5)            charges attributable to the amortization of expenses relating to the Transactions incurred within 180 days of the date of this Indenture.

 

“Foreign Subsidiary” means any Subsidiary of the Company that is not a Domestic Subsidiary.

 

“Foreign Subsidiary Holding Company” means any Domestic Subsidiary of the Company that wholly-owns the stock of one or more Foreign Subsidiaries and which is disregarded for United States federal income tax purposes as an entity that is separate from its owner but only so long as such Subsidiary has no assets other than the stock of one or more Foreign Subsidiaries and de minimis other assets.

 

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States, which are in effect on the date of this Indenture. Notwithstanding the foregoing, all leases and obligations under any leases of any Person that are or would be characterized as operating leases and/or operating lease obligations in accordance with GAAP on January 1, 2018 (whether or not such operating leases and/or operating lease obligations were in effect on such date) shall continue to be accounted for as operating leases and/or operating lease obligations (and not as Capital Lease Obligations) for purposes of this Indenture regardless of any change in GAAP following the date that would otherwise require such obligations to be recharacterized as Capital Lease Obligations. At any time after the date hereof, the Company may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided herein); provided that calculations or determinations herein that require the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company will provide notice of any such election made in accordance with this definition to the Trustee and the Holders.

 

 

“Global Note Legend” means the legend identified as such in Exhibit A, which is required to be placed on all Global Notes issued under this Indenture.

 

“Global Notes” means, individually and collectively, each of the Global Notes deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Article 2.

 

“Government Securities” means direct obligations of, or obligations guaranteed by, the United States of America (including any agency or instrumentality thereof) for the payment of which obligations or guarantees the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the option of the Company and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.

 

“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection or standard contractual indemnities in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

 

“Guarantors” means each of:

 

(1)            B&G Foods North America, Inc., B&G Foods Snacks, Inc., Bear Creek Country Kitchens, LLC, Clabber Girl Corporation, Spartan Foods of America, Inc., Victoria Fine Foods, LLC and William Underwood Company; and

 

 

(2)            any other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture,

 

and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

 

(1)            interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

 

(2)            other agreements or arrangements designed to manage interest rates or interest rate risk; and

 

(3)            other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

 

“Holder” means a Person in whose name a Note is registered.

 

“IFRS” means International Financial Reporting Standards.

 

“Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary whose total assets, as of that date, are less than $100,000 and whose total revenues for the most recent 12-month period do not exceed $100,000; provided that a Restricted Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct credit support for any Indebtedness of the Company.

 

“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

 

(1)            in respect of borrowed money;

 

(2)            evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(3)            in respect of banker’s acceptances;

 

(4)            representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;

 

(5)            representing the balance deferred and unpaid of the purchase price of any property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto, except any such balance that constitutes an accrued expense or trade payable or any similar obligation to trade creditors; or

 

(6)            representing any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person; provided that if the holder of such Indebtedness has no recourse to such Person other than to the asset, the amount of such Indebtedness will be deemed to equal the lesser of the value of such asset and the amount of the obligation so secured) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.

 

 

“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets and the Trade Secret Licenses, and all rights to sue at law or in equity or otherwise recover for any past, present and future infringement, dilution, misappropriation or other violation or impairment thereof, including the right to receive all proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.

 

“Intercreditor Agreement” means, subject to Section 10.01(b), that certain first lien pari passu intercreditor agreement, dated as of the Issue Date, by and between, among others, the Company, the Guarantors, the Credit Agreement Collateral Agent and the Notes Collateral Agent, as the same may be amended, supplemented, modified, replaced or restated in accordance with the terms thereof.

 

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding accounts receivable, trade credit and advances to customers in the ordinary course of business and commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.07(c) hereof. The acquisition by the Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person will not be deemed to be an Investment by the Company or such Subsidiary in such third Person if the purpose of such acquisition by the Company or such Subsidiary was not the Investment in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

 

“Issue Date” means September 26, 2023.

 

“Joint Venture” means any joint venture between the Company and/or any Restricted Subsidiary and any other Person if such joint venture is:

 

(1)            owned 50% or less by the Company and/or any of its Restricted Subsidiaries; and

 

(2)            not directly or indirectly controlled by or under direct or indirect common control of the Company and/or any of its Restricted Subsidiaries.

 

 

“Junior Liens” means Liens securing Indebtedness and any related Obligations, which Liens rank junior to the Liens securing the Notes and any other Pari Passu Obligations; provided that such Indebtedness with an aggregate principal amount in excess of $10.0 million secured by junior-ranking Liens is subject to a Junior Lien Intercreditor Agreement.

 

“Junior Lien Intercreditor Agreement” means a customary intercreditor agreement entered into by and among, as applicable, the Company, the Guarantors, the Notes Collateral Agent, the Credit Agreement Collateral Agent or other Pari Passu Obligations, and one or more administrative agent, collateral agent, trustee or other debt representative of Indebtedness secured by Junior Liens, providing for Liens that are subject to customary lien subordination terms (including a customary standstill period) and provisions customary for such Indebtedness (as determined by the Company in good faith), as the same may be amended, supplemented, modified, replaced or restated in accordance with the terms thereof.

 

“Junior Lien Obligations” means Indebtedness and related Obligations secured by Junior Liens.

 

“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.

 

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement relating to a lien on an asset under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

 

“Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:

 

(1)            any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with:

 

(a)            any Asset Sale; or

 

(b)            the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

 

(2)            any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain (but not loss).

 

“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets that were the subject of such Asset Sale or any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP or in respect of liabilities associated with the asset disposed of and retained by the Company or its Restricted Subsidiaries.

 

 

“Non-Recourse Debt” means Indebtedness:

 

(1)            as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;

 

(2)            no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity; and

 

(3)            as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.

 

“Note Guarantee” means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.

 

“Notes” means the Initial Notes and any Additional Notes. The Initial Notes and the Additional Notes, if any, shall be treated as a single class for all purposes under this Indenture; provided that if any Additional Notes subsequently issued are not fungible with any Notes previously issued for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number. Unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

 

“Notes Security Agreement” means the Security Agreement executed by the Company, the Guarantors and the Notes Collateral Agent, to be dated on the Issue Date, as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed from time to time.

 

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

 

“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Executive Vice-President or any Vice-President of such Person.

 

“Officers’ Certificate” means a certificate signed by two Officers of a Person that complies with Sections 13.04 and 13.05 of this Indenture and is delivered to the Trustee and/or the Notes Collateral Agent, as applicable.

 

“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 13.05 hereof. The counsel may be an employee of or counsel to the Company or any Subsidiary of the Company.

 

 

“Pari Passu Obligations” means (a) all Credit Agreement Obligations, (b) all Secured Notes Obligations and (c) all Additional Pari Passu Obligations.

 

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

 

“Patent License” means all agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor grants or receives a license or similar right in, to, or under any Patent, or otherwise providing for a covenant not to sue for infringement or other violation of any Patent.

 

“Patents” means all United States and foreign patents and certificates of invention or similar industrial property rights, and applications for any of the foregoing, including (i) each patent and patent application, (ii) all reissues and extensions thereof, (iii) all divisions, continuations and continuations-in-part thereof, (iv) all patentable inventions and improvements thereto, (v) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (vi) all proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto and (vii) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

“Permitted Business” means the business of the Company and its Subsidiaries as existing on the date hereof and any other businesses that are the same, similar or reasonably related, ancillary or complementary thereto and reasonable extensions thereof.

 

“Permitted Investments” means:

 

(1)            any Investment in the Company or in a Restricted Subsidiary of the Company;

 

(2)            any Investment in Cash Equivalents;

 

(3)            any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:

 

(a)            such Person becomes a Restricted Subsidiary of the Company; or

 

(b)            such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;

 

(4)            any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;

 

(5)            any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

 

(6)            any Investments received (a) in compromise or resolution of (i) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (ii) litigation, arbitration or other disputes with Persons who are not Affiliates; or (b) in satisfaction of judgments;

 

 

(7)            Investments represented by Hedging Obligations;

 

(8)            loans or advances to directors, officers, employees and consultants made in the ordinary course of business of the Company or the Restricted Subsidiary of the Company in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;

 

(9)            repurchases of the Notes;

 

(10)          intercompany loans to the extent permitted by Section 4.09 hereof;

 

(11)          loans by the Company in an aggregate principal amount not exceeding $5.0 million to employees of the Company or its Restricted Subsidiaries to finance the sale of the Company’s Capital Stock by the Company to such employees; provided that the net cash proceeds from such sales respecting such loaned amounts will not be included in the calculation described in clause (b) of the second paragraph (1) of Section 4.07(a) hereof;

 

(12)          any Investment in existence on the date hereof;

 

(13)          receivables owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

 

(14)          any Investment in any Person to the extent the Investment consists of prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Company or any of its Restricted Subsidiaries;

 

(15)          Guarantees of Obligations of the Company and its Restricted Subsidiaries otherwise permitted by the terms of this Indenture, including guarantees of Indebtedness, performance guarantees and guarantees of operating leases or other obligations that do not constitute Indebtedness; and

 

(16)         other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (16) that are at the time outstanding, not to exceed the greater of (i) 4.0% of Total Assets and (ii) $150.0 million at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided that if an Investment made pursuant to this clause (16) is made in any Person that is not a Restricted Subsidiary of the Company at the date of the making of the Investment and such Person becomes a Restricted Subsidiary after such date, such Investment will thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (16).

 

“Permitted Liens” means:

 

(1)            Liens on assets of the Company or any of its Restricted Subsidiaries securing Pari Passu Obligations or Junior Lien Obligations (including Hedging Obligations to the extent constituting Pari Passu Obligations or Junior Lien Obligations) permitted to be incurred pursuant to Section 4.09(b)(1);

 

(2)            Liens in favor of the Company or the Guarantors;

 

 

(3)            Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Subsidiary of the Company; provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Company or the Subsidiary;

 

(4)            Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were not incurred in contemplation of, such acquisition;

 

(5)            Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds, deposits to secure the performance of bids, trade contracts, government contracts, warranty requirements, leases or licenses or other obligations of a like nature or incurred in the ordinary course of business (including, without limitation, landlord Liens on leased real property and rights of offset and set-off);

 

(6)            Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(b)(4) of this Indenture; covering only the assets acquired with or financed by such Indebtedness;

 

(7)            Liens existing on the date hereof;

 

(8)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

 

(9)            Liens imposed by law, such as carriers’, warehousemen’s, landlord’s, materialmen’s, repairmen’s and mechanics’ Liens, in each case, incurred in the ordinary course of business;

 

(10)          survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

(11)          (x) Liens created for the benefit of (or to secure) the Notes (or the Note Guarantees), other than Additional Notes (or the Note Guarantees thereof) or (y) Liens created pursuant to Section 4.12(b) for the benefit of (or to secure) the Notes (or the Note Guarantees);

 

(12)          Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided, however, that:

 

(a)            the new Lien is limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof);

 

(b)            the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged with such Permitted Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge; and

 

 

(c)            if such Lien is a Lien on the Collateral, then either (i) such new Lien shall have no greater priority than the original Lien, (ii) such new Lien shall be junior in priority to the Liens that secure the Notes and shall not secure Indebtedness for borrowed money or (iii) such new lien shall be a Junior Lien;

 

(13)          Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and other similar Liens arising in the ordinary course of business;

 

(14)          Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;

 

(15)          Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(16)          leases or subleases granted to third Persons not interfering with the ordinary course of business of the Company or any of its Restricted Subsidiaries;

 

(17)          Liens (other than any Lien imposed by ERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance, and other types of social security;

 

(18)          deposits made in the ordinary course of business to secure liability to insurance carriers;

 

(19)          Liens under licensing agreements for use of intellectual property entered into in the ordinary course of business;

 

(20)          judgment Liens not giving rise to an Event of Default;

 

(21)          Liens on the assets of a Restricted Subsidiary of the Company that is not a Guarantor securing Indebtedness of that Restricted Subsidiary; provided that such Indebtedness was permitted to be incurred under Section 4.09 hereof;

 

(22)          Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;

 

(23)          Liens solely on any cash earnest money deposits made by the Company or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Indenture;

 

(24)          Liens arising from Uniform Commercial Code (or equivalent statute) financing statement filings regarding operating leases entered into in the ordinary course of business;

 

 

(25)          Liens incurred in the ordinary course of business of the Company or any Restricted Subsidiary of the Company with respect to obligations that do not exceed $30.0 million at any one time outstanding; and

 

(26)          (x) Liens securing Pari Passu Obligations; provided that, as of the date of incurrence of such Pari Passu Obligations, the Consolidated Secured Leverage Ratio of the Company does not exceed 4.25 to 1:00 and (y) Liens securing Junior Lien Obligations; provided that, as of the date of incurrence of such Junior Lien Obligations, the Consolidated Secured Leverage Ratio of the Company does not exceed 4.25 to 1:00.

 

“Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:

 

(1)            the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);

 

(2)            such Permitted Refinancing Indebtedness has a final maturity date later than or the same as the final maturity date of, and has a Weighted Average Life to Maturity that is (a) equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged or (b) more than 90 days after the final maturity date of the Notes;

 

(3)            if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and

 

(4)            such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.

 

“Person” means any individual, corporation, limited liability company, joint stock company, joint venture, partnership, limited liability partnership, association, unincorporated organization, trust, governmental regulatory entity, country, state, agency or political subdivision thereof, municipality, county, parish or other entity.

 

“Principals” means the members of management of the Company or any of the Company’s Restricted Subsidiaries as of the date hereof.

 

“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating organization or organizations, as the case may be, selected by the Company which shall be substituted for Moody’s or S&P or both, as the case may be.

 

 

“Related Party” means:

 

(1)            any controlling stockholder, 66 2/3% or more owned Subsidiary, or immediate family member (in the case of an individual) of any Principal; or

 

(2)            any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or Persons beneficially holding a 66 2/3% or more controlling interest of which consist of any one or more Principals and/or such other Persons referred to in the immediately preceding clause (1).

 

“Resale Restriction Termination Date” means for any Transfer Restricted Note (or beneficial interest therein), that is (a) not a Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to Section 2.06(b) hereof), one year (or such other period specified in Rule 144(d)) from the Issue Date or, if any Additional Notes that are Transfer Restricted Notes and are not Regulation S Global Notes have been issued before the Resale Restriction Termination Date for any Transfer Restricted Notes, from the latest such original issue date of such Additional Notes, and (b) a Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to Section 2.06(b) hereof), the date on or after the 40^th consecutive day beginning on and including the later of (i) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S and (ii) the issue date for such Notes.

 

“Responsible Officer,” when used with respect to the Trustee or the Notes Collateral Agent, as applicable, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“Restricted Cash” means cash and Cash Equivalents held by a Subsidiary that is contractually restricted from being distributed to the Company; provided, that cash or Cash Equivalents maintained by any Foreign Subsidiary that is subject to minority shareholder approval before being distributed to the Company shall not deemed to be “Restricted Cash” as a result of such restriction.

 

“Restricted Investment” means an Investment other than a Permitted Investment.

 

“Restricted Notes Legend” means the legend identified as such in Exhibit A.

 

“Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.

 

“S&P” means S&P Global Ratings, and any successor to its rating agency business.

 

“SEC” means the Securities and Exchange Commission.

 

“Secured Parties” means the Trustee, the Notes Collateral Agent and the holders of the Secured Note Obligations.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

“Security Documents” means the Notes Security Agreement, the Intercreditor Agreement, any Junior Lien Intercreditor Agreement and each of the collateral assignments, security agreements, pledge agreements, intellectual property security agreements or other similar agreements or instruments evidencing or creating or purporting to create any security interests in favor of the Notes Collateral Agent for its benefit and for the benefit of the Trustee and the Holders, in all or any portion of the Collateral, as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed from time to time.

 

 

“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.

 

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the date hereof, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)            any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

(2)            any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

 

“Total Assets” means the total assets of the Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Company.

 

“Total Debt” means as at any date of determination, the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capital Lease Obligations and debt obligations evidenced by promissory notes and similar instruments, in each case determined in accordance with GAAP less the aggregate amount of cash and Cash Equivalents of the Company and its Subsidiaries at such date that is not Restricted Cash; provided that Total Debt shall not include Indebtedness in respect of any notes or other debt securities that have been defeased or satisfied and discharged in accordance with the applicable indenture or with respect to which the required deposit has been made in connection with a call for repurchase or redemption to occur within the time period set forth in the applicable indenture, in each case to the extent such transactions are permitted by the applicable indenture.

 

“Total Secured Debt” means, as of any date of determination, Total Debt other than any Total Debt that is unsecured and/or has been subordinated to the Obligations.

 

“Trade Secret Licenses” means all agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor grants or receives a license or similar right in, to, or under any Trade Secret.

 

 

“Trade Secrets” means all trade secrets and all other confidential or proprietary information that derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and (i) the right to sue or otherwise recover for any past, present and future misappropriation or other violation thereof, (ii) all proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and (iii) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

“Trademark License” means all agreements to which the Company or any Guarantor is a party, in which the Company or any Guarantor grants or receives a license or similar right in, to, or under any Trademark or otherwise providing for a covenant not to sue for infringement, dilution, or other violation of any Trademark.

 

“Trademarks” means all United States, and foreign trademarks, trade names, trade dress, corporate names, company names, business names, fictitious business names, Internet domain names, trade styles, service marks, logos and other source or business identifiers and designs, now existing or hereafter adopted or acquired, whether or not registered, and with respect to any and all of the foregoing: (i) all registration and applications therefore, (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (iv) the right to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing or for any injury to the related goodwill, (v) all proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

“Transactions” means the issuance of the Notes and the application of the proceeds therefrom.

 

“Transfer Restricted Notes” means Notes that bear or are required to bear the Restricted Notes Legend.

 

“Treasury Rate” means, with respect to any redemption of the Notes, the yield to maturity as of the earlier of (a) the redemption date or (b) the date on which the Notes are defeased or satisfied and discharged, of United States Treasury securities with a constant maturity (as compiled and published in the most recent Selected Interest Rates (Daily) H.15 release that has become publicly available at least two business days prior to such date (or, if such release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date to September 15, 2025; provided, however, that if the period from such date to September 15, 2025, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

“Trustee” means The Bank of New York Mellon Trust Company, N.A. until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

 

“Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

 

(1)            has no Indebtedness other than Non-Recourse Debt;

 

(2)            except as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

 

 

(3)            is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

 

(4)            has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries.

 

“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

 

“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

(1)            the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

(2)            the then outstanding principal amount of such Indebtedness.

 

Section 1.02           Other Definitions.

 

Term	Defined in Section
“Affiliate Transaction”	4.11
“Agent Members”	2.06(a)
“Applicable Law”	13.17
“Asset Sale Offer”	3.09
“Authentication Order”	2.02
“Authorized Officers”	13.02
“CERCLA”	10.07(u)
“Change of Control Offer”	4.15
“Change of Control Payment”	4.15
“Change of Control Payment Date”	4.15
“Covenant Defeasance”	8.03
“DTC”	2.03
“Event of Default”	6.01
“Excess Proceeds”	4.10
“incur”	4.09
“Instructions”	13.02
“Legal Defeasance”	8.02
“Offer Amount”	3.09
“Offer Period”	3.09
“Paying Agent”	2.03
“Payment Default”	6.01
“Permitted Debt”	4.09
“Purchase Date”	3.09
“QIB”	2.01(i)
“QIB Global Note”	2.01(i)
“Registrar”	2.03
“Regulation S”	2.01(i)
“Regulation S Global Note”	2.01(i)
“Related Person”	10.07(b)
“Restricted Payments”	4.07
“Rule 144A”	2.01(i)
“Secured Notes Obligations”	10.01(a)
“Security Document Order”	10.01(b)
“Specified Courts”	13.16
“Suspended Covenants”	4.21

 

 

Section 1.03           Rules of Construction.

 

Unless the context otherwise requires:

 

(1)            a term has the meaning assigned to it;

 

(2)            an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

(3)            “or” is not exclusive;

 

(4)            words in the singular include the plural, and in the plural include the singular;

 

(5)            “will” shall be interpreted to express a command;

 

(6)            provisions apply to successive events and transactions;

 

(7)            references to sections of or rules under the Securities Act or the Exchange Act will be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;

 

(8)            any reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;

 

(9)            the words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision;

 

(10)          unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture; and

 

 

(11)          in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

 

ARTICLE 2
THE NOTES

 

Section 2.01           Form and Dating.

 

(a)            The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall initially be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

(b)            The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

(c)            The Notes shall be issued initially in global form substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto), which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee as custodian for the Depositary, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided.

 

(d)            Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interest. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

 

(e)            Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

(f)            Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture.

 

 

(g)            Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

(h)            Except as set forth in Section 2.06 hereof, the Global Notes may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor of the Depositary or its nominee.

 

(i)            The Initial Notes are being issued by the Company only (i) to “qualified institutional buyers” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) (“QIBs”) and (ii) in reliance on Regulation S under the Securities Act (“Regulation S”). After such initial issuance, Initial Notes that are Transfer Restricted Notes may be transferred as provided in the Restricted Notes Legend. Initial Notes that are offered in reliance on Rule 144A shall be issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A (collectively, the “QIB Global Note”), deposited with the Trustee, as Custodian, duly executed by the Company and authenticated by the Trustee as hereinafter provided. Initial Notes that are offered in offshore transactions in reliance on Regulation S shall be issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A, (the “Regulation S Global Note”) duly executed by the Company and authenticated by the Trustee as hereinafter provided shall be deposited with the Trustee, as custodian for the Depositary. The QIB Global Note and the Regulation S Global Note shall each be issued with separate CUSIP numbers. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Custodian. Transfers of Notes among QIBs and to or by purchasers pursuant to Regulation S shall be represented by appropriate increases and decreases to the respective amounts of the appropriate Global Notes, as more fully provided in Section 2.14 hereof.

 

(j)            Sections 2.01(d), 2.01(e) and 2.01(f) hereof shall apply only to Global Notes deposited with or on behalf of the Depositary.

 

(k)            The Company shall execute and the Trustee shall, in accordance with Section 2.01(d) hereof and Section 2.01(e) hereof, authenticate and deliver the Global Notes that (i) shall be registered in the name of the Depositary or the nominee of the Depositary and (ii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions or held by the Trustee as Custodian for the Depositary.

 

(l)            Notes issued in certificated form shall be substantially in the form of Exhibit A attached hereto.

 

Section 2.02           Execution and Authentication.

 

At least one Officer must sign the Notes for the Company by manual, facsimile, .pdf attachment or other electronically transmitted signature.

 

 

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.

 

A Note will not be valid until authenticated by the manual or electronic signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.

 

The Trustee will, upon receipt of a written order of the Company signed by at least one Officer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.08 hereof.

 

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.

 

At any time and from time to time, the Trustee shall, upon receipt of an Authentication Order, authenticate and deliver Additional Notes in an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder and, in the case of any issuance of Additional Notes pursuant to Section 2.15 hereof, such Authentication Order shall certify that such issuance is in compliance with Section 2.15 hereof.

 

Section 2.03           Registrar and Paying Agent.

 

The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing, and the Trustee shall notify the Holders, of the name and address of any Agent not a party to this Indenture. The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. Such agreement shall implement the provisions of this Indenture that relate to such Agent. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

 

The Company initially appoints The Depository Trust Company (“DTC”) to act as Depository with respect to the Global Notes.

 

The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

 

Section 2.04           Paying Agent to Hold Money in Trust.

 

The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest, if any, on, the Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.

 

 

Section 2.05           Holder Lists.

 

The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.

 

Section 2.06           Transfer and Exchange.

 

(a)            Each Global Note shall (i) be registered in the name of the Depositary for such Global Notes or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as required by Section 2.06(e) hereof.

 

Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as Custodian, or under such Global Note, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any Agent or other agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of an owner of a beneficial interest in any Global Note.

 

The Trustee shall have no responsibility or obligation to any Holder that is a member of (or a Participant in) DTC or any other Person with respect to the accuracy of the records of DTC (or its nominee) or of any member or Participant thereof, with respect to any ownership interest in the Notes or with respect to the delivery of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to the Notes. The Trustee may conclusively rely (and shall be fully protected in relying) upon information furnished by DTC with respect to its members, participants and any beneficial owners in the Notes.

 

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Global Note (including any transfers between or among Depositary Participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.

 

(b)            Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Note may be transferred in accordance with this Section 2.06, Section 2.14 hereof and the Applicable Procedures. In addition, Certificated Notes shall be transferred to all beneficial owners (or the requesting beneficial owners, in the case of clause (ii)) in exchange for their beneficial interests only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Notes or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary is not appointed by the Company within ninety (90) days of such notice, (ii) an Event of Default of which a Responsible Officer of the Trustee has received written notice thereof and the Registrar has received a request from any beneficial owner of an interest in any Global Note (subject to the third paragraph of Section 2.06(a) hereof) to issue such Certificated Notes or (iii) the Company, in its sole discretion, notifies the Trustee that it elects to cause the issuance of Certificated Notes.

 

 

(c)            In connection with the transfer of the entire Global Note to beneficial owners pursuant to clause (b) of this Section, such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Note an equal aggregate principal amount of Certificated Notes of authorized denominations.

 

(d)            The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interest through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

 

(e)            Legends. Each Global Note will bear the Global Note Legend on the face thereof.

 

(f)            At such time as all beneficial interests in a particular Global Note have been exchanged for Certificated Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Certificated Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

(g)            General Provisions Relating to Transfers and Exchanges.

 

(1)            To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Certificated Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.

 

(2)            No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Certificated Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).

 

(3)            The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

 

(4)           All Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Certificated Notes surrendered upon such registration of transfer or exchange.

 

(5)            Neither the Registrar nor the Company will be required:

 

(A)            to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;

 

(B)            to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or

 

(C)            to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

 

(6)           Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

 

(7)            The Trustee will authenticate Global Notes and Certificated Notes in accordance with the provisions of Section 2.02 hereof.

 

(8)            All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar to effect a registration of transfer or exchange may be submitted by facsimile or .pdf attachment or other electronically transmitted signature.

 

Section 2.07           Replacement Notes.

 

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses (including the fees and expenses of the Trustee) in replacing a Note.

 

Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

Section 2.08           Outstanding Notes.

 

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

 

 

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

 

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

 

If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.

 

Section 2.09           Treasury Notes.

 

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any Affiliate of the Company, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded. Notwithstanding the foregoing, Notes that are to be acquired by the Company or an Affiliate of the Company pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such entity until legal title to such Notes passes to such entity.

 

Section 2.10           Temporary Notes.

 

Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate certificated Notes in exchange for temporary Notes.

 

Holders of temporary Notes will be entitled to all of the benefits of this Indenture.

 

Section 2.11           Cancellation.

 

The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes (subject to the record retention requirement of the Exchange Act) in its customary manner. Certification of the disposition of all canceled Notes will be delivered to the Company upon its written request therefor. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

 

Section 2.12           Defaulted Interest.

 

If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

 

 

Section 2.13           CUSIP Numbers.

 

The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will as promptly as practicable notify the Trustee in writing of any change in “CUSIP” numbers.

 

Section 2.14           Special Transfer Provisions.

 

Each Initial Note and each Additional Note issued pursuant to an exemption from registration under the Securities Act will constitute a Transfer Restricted Note and be required to bear the Restricted Notes Legend until the expiration of the Resale Restriction Termination Date therefor, unless and until such Transfer Restricted Note is transferred or exchanged pursuant to an effective registration statement under the Securities Act. The following provisions shall apply to the transfer of a Transfer Restricted Note, subject to Section 2.14(d) hereof:

 

(a)            Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Transfer Restricted Note (other than pursuant to Regulation S under the Securities Act) to a QIB:

 

(1)            The Registrar shall register the transfer of a Transfer Restricted Note by a Holder to a QIB if such transfer is being made by a proposed transferor who has provided the Registrar with (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit D from the proposed transferor.

 

(2)            If the proposed transferee is an Agent Member and the Transfer Restricted Note to be transferred consists of an interest in the Regulation S Global Note, upon receipt by the Registrar of (x) the items required by paragraph (1) above and (y) instructions given in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the QIB Global Note in an amount equal to the principal amount of the beneficial interest in the Regulation S Global Note to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in such Regulation S Global Note to be so transferred.

 

(b)            Transfers Pursuant to Regulation S. The following provisions shall apply with respect to registration of any proposed transfer of a Transfer Restricted Note pursuant to Regulation S:

 

(1)            The Registrar shall register any proposed transfer of a Transfer Restricted Note by a Holder pursuant to Regulation S upon receipt of (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit E hereto from the proposed transferor.

 

 

(2)            If the proposed transferee is an Agent Member and the Transfer Restricted Note to be transferred consists of an interest in the QIB Global Note, upon receipt by the Registrar of (x) the letter, if any, required by paragraph (1) above and (y) instructions in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in the QIB Global Note to be transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the QIB Global Note in an amount equal to the principal amount of the beneficial interest in such QIB Global Note to be transferred.

 

(3)            Prior to the expiration of the Resale Restriction Termination Date, interests in the Regulation S Global Note may only be held through Euroclear or Clearstream.

 

(c)            Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing the Restricted Notes Legend, the Registrar shall deliver Notes that do not bear the Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing the Restricted Notes Legend, the Registrar shall deliver only Notes that bear the Restricted Notes Legend unless there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.

 

(d)            General. By its acceptance of any Note bearing the Restricted Notes Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Restricted Notes Legend and agrees that it shall transfer such Note only as provided in this Indenture. A transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note shall be subject to compliance with applicable law and the Applicable Procedures of the Depositary but is not subject to any procedure required by this Indenture.

 

In connection with any proposed transfer pursuant to Regulation S or pursuant to any other available exemption from the registration requirements of the Securities Act (other than pursuant to Rule 144A), the Company and the Trustee may require the delivery of an Opinion of Counsel, other certifications or other information satisfactory to the Company and the Trustee.

 

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.14.

 

Section 2.15           Issuance of Additional Notes.

 

The Company shall be entitled to issue Additional Notes under this Indenture that shall have identical terms as the Initial Notes, other than with respect to the date of issuance, issue price and amount of interest payable on the first interest payment date applicable thereto (and, if such Additional Notes shall be issued in the form of Transfer Restricted Notes, other than with respect to transfer restrictions and additional interest with respect thereto); provided that such issuance is not prohibited by the terms of this Indenture, including Section 4.09 and Section 4.12. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture. Any such Additional Notes that are not fungible with the Initial Notes offered hereunder for U.S. federal income tax purposes shall have a separate CUSIP, ISIN or other identifying number from such Initial Notes.

 

 

With respect to any Additional Notes, the Company shall set forth in a Board of Directors resolution and in an Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information:

 

(a)            the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;

 

(b)            the issue price, the issue date, the CUSIP number of such Additional Notes, the first interest payment date and the amount of interest payable on such first interest payment date applicable thereto and the date from which interest shall accrue; and

 

(c)            whether such Additional Notes shall be Transfer Restricted Notes.

 

ARTICLE 3
REDEMPTION AND PREPAYMENT

 

Section 3.01          Notices to Trustee.

 

If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 5 Business Days before the date of giving of the notice of redemption (or such shorter notice as may be acceptable to the Trustee) but not more than 60 days before a redemption date, an Officers’ Certificate setting forth:

 

(1)            the clause of this Indenture pursuant to which the redemption shall occur;

 

(2)            the redemption date;

 

(3)            the principal amount of Notes to be redeemed; and

 

(4)            the redemption price.

 

Section 3.02          Selection of Notes to Be Redeemed or Purchased.

 

(a)            If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Notes will be selected for redemption by lot (or, in the case of Notes issued in global form pursuant to Article 2 hereof, pursuant to Applicable Procedures) unless otherwise required by law or applicable stock exchange or depositary requirements.

 

(b)            No Notes of $2,000 or less can be redeemed in part. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.

 

(c)            Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

 

 

Section 3.03          Notice of Redemption.

 

Subject to the provisions of Section 3.09 hereof, at least 10 days but not more than 60 days before a redemption date, the Company will send a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 12 hereof.

 

The notice will identify the Notes to be redeemed and will state:

 

(1)            the redemption date;

 

(2)            the redemption price;

 

(3)            if any Notes are being redeemed in part, the portion of the principal amount of such Notes to be redeemed and that, after the redemption date upon surrender of such Notes, new Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Notes;

 

(4)            the name and address of the Paying Agent;

 

(5)            that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(6)            that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

(7)            the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

 

(8)            that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.

 

At the Company’s request, the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however, that the Trustee is given at least 5 Business Days prior notice of the date of the giving of such notice (unless a shorter period shall be acceptable to the Trustee).

 

Section 3.04          Effect of Notice of Redemption.

 

Once notice of redemption is sent in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price; provided, however, that any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering, other offering or other corporate transaction or event. In addition, the Company may provide in any notice of redemption that payment of the redemption price and the performance of its obligations with respect to such redemption may be performed by another person; provided, further, however, that the Company shall remain obligated to pay the redemption price and perform its obligations with respect to such redemption in the event such other person fails to do so. Notice of any redemption in respect of an Equity Offering may be given prior to completion thereof.

 

 

Section 3.05          Deposit of Redemption or Purchase Price.

 

On or prior to 10:00 A.M. Eastern Time on the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased upon written receipt of instructions from the Company specifying how such funds are to be delivered.

 

If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

 

Section 3.06          Notes Redeemed or Purchased in Part.

 

Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company new Notes equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.

 

Section 3.07          Optional Redemption.

 

(a)           At any time prior to September 15, 2025, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount of Notes issued under this Indenture (including Additional Notes, if any), upon not less than 10 nor more than 60 days’ notice, at a redemption price equal to 108.000% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date (subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date), in an amount not to exceed the net cash proceeds of one or more Equity Offerings of the Company; provided that:

 

(1)            at least 50% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

 

(2)            the redemption occurs within 90 days of the date of the closing of such Equity Offering.

 

(b)           At any time prior to September 15, 2025, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid interest, if any, to the date of redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date.

 

(c)            Except pursuant to the preceding paragraphs of this Section 3.07, the Notes will not be redeemable at the Company’s option prior to September 15, 2025.

 

 

(d)           On or after September 15, 2025, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on September 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:

 

Year			Percentage
2025				104.000	%
2026				102.000	%
2027 and thereafter				100.000	%

 

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

 

(e)            Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

 

(f)            Any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering, other offering or other corporate transaction or event. In addition, the Company may provide in any notice of redemption that payment of the redemption price and the performance of its obligations with respect to such redemption may be performed by another person; provided, however, that the Company shall remain obligated to pay the redemption price and perform its obligations with respect to such redemption in the event such other person fails to do so. Notice of any redemption in respect of an Equity Offering may be given prior to completion thereof. Further, the redemption date of any redemption that is subject to satisfaction of one or more conditions precedent may, in the Company’s discretion, be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and any notice with respect to such redemption may be modified or rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the redemption date, or by the redemption date so delayed (which may exceed 60 days from the date of the redemption notice in such case). In addition, such notice of redemption may be extended if such conditions precedent have not been satisfied or waived by the Company by providing notice to the Holders.

 

Section 3.08         Mandatory Redemption.

 

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. However, for the avoidance of doubt, the Company may be required to offer to purchase Notes as described elsewhere in this Indenture. The foregoing shall be without prejudice to the Company’s ability, at any time and from time to time, to purchase Notes in the open market or otherwise.

 

Section 3.09         Offer to Purchase by Application of Excess Proceeds.

 

In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures specified below.

 

The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.

 

 

If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

 

Upon the commencement of an Asset Sale Offer, the Company will send a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:

 

(1)            that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;

 

(2)            the Offer Amount, the purchase price and the Purchase Date;

 

(3)            that any Note not tendered or accepted for payment will continue to accrue interest;

 

(4)            that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;

 

(5)            that Holders electing to have Notes purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or an integral multiple of $1,000 in excess thereof;

 

(6)            that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

 

(7)            that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

 

(8)            that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased); and

 

 

(9)            that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

 

On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than three Business Days after the Purchase Date) send to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and send (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly sent by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.

 

Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

 

ARTICLE 4
COVENANTS

 

Section 4.01          Payment of Notes.

 

The Company will pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.

 

The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.

 

Section 4.02         Maintenance of Office or Agency.

 

The Company will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

 

 

The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

The Company hereby designates an affiliate of the Trustee at 240 Greenwich Street, New York, New York 10286 as one such office or agency of the Company in accordance with Section 2.03 hereof.

 

Section 4.03          Reports.

 

(a)  Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the Holders or cause the Trustee to furnish to the Holders, within the time periods specified in the SEC’s rules and regulations:

 

(1)            all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and

 

(2)            all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports;

 

provided, however, that the availability of the foregoing materials on the SEC’s EDGAR service or on the Company’s website shall be deemed to satisfy the Company’s delivery obligations under this Section 4.03(a).

 

All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s independent registered public accounting firm. In addition, the Company will file a copy of each of the reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the rules and regulations applicable to such reports (unless the SEC will not accept such a filing) and will make such information available to securities analysts and prospective investors upon request.

 

Notwithstanding anything to the contrary set forth in the foregoing, if the Company is at any time not obligated to file or furnish such reports with or to the SEC, the Company shall be permitted to make available such information to prospective purchasers, the Trustee and the Holders in the manner contemplated by the following paragraph within the time the Company would have been required to file such information with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act as provided above and shall not be required to file or furnish such reports with or to the SEC; provided, further, (i) in no event shall such financial statements, information or reports be required to comply with (v) Rule 3-10 of Regulation S-X promulgated by the SEC (or such other rule or regulation that amends, supplements or replaces such Rule 3-10, including for the avoidance of doubt, Rules 13-01 or 13-02 of Regulation S-X promulgated by the SEC), (w) Rule 3-09 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-09), (x) Rule 3-16 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-16), (y) Rule 3-05 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-05) or (z) any requirement to otherwise include any schedules or separate financial statements of any of the Subsidiaries of the Company, Affiliates or equity method investees, (ii) in no event shall such financial statements, information or reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained therein, (iii) no such financial statements, information or reports referenced under clause (2) above shall be required to be furnished if the Company determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial position of the Company and its Restricted Subsidiaries, taken as a whole, (iv) in no event shall such financial statements or reports be required to include any information that is not otherwise similar to information included in the Company’s offering memorandum dated September 12, 2023, relating to the initial offering of the Notes, other than with respect to information or reports provided under clause (2) above, including, for the avoidance of doubt, director and executive officer compensation information required by Item 402 of Regulation S-K or any other compensation information or any information required by Item 407 of Regulation S-K and (v) in no event shall information or reports be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a Form 10-K, Form 10-Q or Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available and, in any case with respect to pro forma financial statements, to include only pro forma revenues, EBITDA and capital expenditures in lieu thereof.

 

 

In the event the Company is not required to file reports with the SEC, in addition to providing such information to the Trustee, the Company shall make available to the Holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to clauses (a)(1) and (a)(2) of this Section 4.03, by posting such information to its website or on IntraLinks or any comparable online data system or website, it being understood that the Trustee shall have no responsibility to determine if such information has been posted on any website. Notwithstanding the foregoing, the Company will be deemed to have furnished such reports referred to above to the Trustee, the Holders, prospective investors, market makers and securities analysts if the Company has filed such reports with the SEC via the EDGAR filing system (or any successor thereto) and such reports are publicly available, it being understood that the Trustee shall have no responsibility to determine if such information has been posted on any website.

 

(b)  If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by paragraph (a) of this Section 4.03 will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

 

In the event that:

 

(1)            the rules and regulations of the SEC permit the Company and any direct or indirect parent of the Company to report at such parent entity’s level on a consolidated basis and such parent entity is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the Capital Stock of the Company, or

 

(2)            any direct or indirect parent of the Company is or becomes a Guarantor of the Notes, consolidating reporting at the parent entity’s level in a manner consistent with that described in this Section 4.03 for the Company will satisfy this Section 4.03, and this Indenture will permit the Company to satisfy its obligations in this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such direct or indirect parent; provided that such financial information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and any of its Subsidiaries other than the Company and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand.

 

For so long as any Notes remain outstanding, if at any time the Company or any Guarantors are not required to file the reports required by the preceding paragraphs, they will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

 

 

Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.03 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).

 

Section 4.04          Compliance Certificate.

 

(a)  The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year (commencing with the fiscal year 2024), an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium on, if any, or interest, if any, on, the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.

 

(b)  So long as any of the Notes are outstanding, the Company will deliver to the Trustee, forthwith (and in any event within 10 days) upon any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

 

Section 4.05         [Reserved].

 

[Reserved].

 

Section 4.06         [Reserved].

 

[Reserved].

 

Section 4.07         Restricted Payments.

 

(a)  The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

 

(1)            declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);

 

 

(2)            purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests (other than any such Equity Interest owned by a wholly owned Restricted Subsidiary of the Company) of the Company or any direct or indirect parent of the Company;

 

(3)            make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment of interest or principal on, or the purchase, repurchase or other acquisition of, such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such payment, purchase, repurchase or other acquisition; or

 

(4)            make any Restricted Investment;

 

(all such payments and other actions set forth in these clauses (1) through (4) being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment, no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment and:

 

(1)            if the Fixed Charge Coverage Ratio for the Company’s four most recent fiscal quarters for which internal financial statements are available is not less than 1.6 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the date hereof (except for Restricted Payments made pursuant to Sections 4.07(b)(1) (so long as such Restricted Payment was previously included for purposes of this calculation (to the extent required to be so included) at the time of its declaration), 4.07(b)(2), 4.07(b)(3), 4.07(b)(4), 4.07(b)(6), 4.07(b)(7), 4.07(b)(8), 4.07(b)(9), 4.07(b)(10), 4.07(b)(11) or 4.07(b)(12) below), is less than the sum of $600.0 million and, without duplication:

 

(a)             Excess Cash of the Company for the period (taken as one accounting period) from July 1, 2023 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment; plus

 

(b)             100% of the aggregate net cash proceeds received by the Company since July 1, 2023 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus

 

(c)             100% of the Fair Market Value as of the date of issuance of any Equity Interests (other than Disqualified Stock) issued since July 1, 2023 by the Company as consideration for the purchase by the Company or any of its Restricted Subsidiaries of all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture); plus

 

(d)             to the extent that any Restricted Investment that was made after July 1, 2023 is sold for cash or other property or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment or the Fair Market Value of such other property (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus

 

 

(e)             to the extent that any Unrestricted Subsidiary of the Company designated as such after July 1, 2023 is redesignated as a Restricted Subsidiary after July 1, 2023 or merges or consolidates with or into, or is liquidated into, the Company or any of its Restricted Subsidiaries, the lesser of (i) the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after July 1, 2023.

 

(b)            The preceding provisions will not prohibit:

 

(1)            the payment of any dividend or the consummation of any irrevocable redemption within 120 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Indenture;

 

(2)            the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the sale within 10 Business Days (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the contribution of common equity capital to the Company within 10 Business Days; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (b) of the second paragraph (1) of Section 4.07(a);

 

(3)            the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or issuance of Disqualified Stock permitted to be issued by Section 4.09 hereof within 10 Business Days from such incurrence or issuance;

 

(4)            the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;

 

(5)            so long as no Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, director or employee of the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option plan or any other management or employee benefit plan or agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $15.0 million in any calendar year (provided that the Company may carry over and make in a subsequent calendar year, in addition to the amounts permitted for such calendar year, up to $5.0 million of unutilized capacity under this clause (5) attributable to the immediately preceding calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds received by the Company or any of its Restricted Subsidiaries (to the extent contributed to the Company) from sales of Equity Interests (other than Disqualified Stock) of the Company to officers, directors or employees of the Company or any of its Restricted Subsidiaries that occur after the date of this Indenture (provided that the amount of such cash proceeds used for any such repurchase, redemption, acquisition or retirement will not increase the amount available for Restricted Payments under clause (b) of the second paragraph (1) of Section 4.07(a) hereof and provided that the Company may elect to apply all or any portion of the aggregate increase contemplated by this proviso in any calendar year); provided, further, that cancellation of Indebtedness owing to the Company from members of management of the Company or any Restricted Subsidiary in connection with a repurchase of Equity Interests of the Company will not be deemed to constitute a Restricted Payment;

 

 

(6)            the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;

 

(7)            so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company issued on or after the date of this Indenture in accordance with Section 4.09 hereof;

 

(8)            so long as no Default has occurred and is continuing or would be caused thereby, upon the occurrence of an Asset Sale or a Change of Control and within 60 days after the completion of the related Asset Sale Offer or Change of Control Offer, any purchase or redemption of Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee required pursuant to the terms thereof as a result of such Asset Sale or Change of Control at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any; provided, however, that such purchase or redemption is not made, directly or indirectly, from the proceeds of (or made in anticipation of) any issuance of Indebtedness by the Company or any of its Restricted Subsidiaries;

 

(9)            payments of dividends to the Company solely to enable it to make payments to holders of its Capital Stock in lieu of the issuance of fractional shares of its Capital Stock;

 

(10)          the acquisition of any shares of Disqualified Stock of the Company in exchange for other shares of Disqualified Stock of the Company or with the net cash proceeds from an issuance of Disqualified Stock by the Company within 10 Business Days of such issuance, in each case that is permitted to be issued under Section 4.09 hereof;

 

(11)          [Reserved]; and

 

(12)          so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount at the time outstanding not to exceed the greater of (i) $150.0 million or (ii) 4.0% of Total Assets.

 

(c)            For purposes of this Section 4.07, the amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in Section 4.07(b) or is entitled to be made pursuant to Section 4.07(a) hereof, the Company will be permitted, in its sole discretion, to classify the Restricted Payment, or later reclassify the Restricted Payment, in any manner that complies with this Section 4.07. For the avoidance of doubt, the foregoing provisions do not restrict the repurchase, redemption, defeasance or other acquisition or retirement for value of the Existing Notes including any call premium paid in connection therewith.

 

 

Section 4.08          Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

 

(a)            The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

 

(1)            pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;

 

(2)            make loans or advances to the Company or any of its Restricted Subsidiaries; or

 

(3)            transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

 

(b)           However, the preceding restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

 

(1)            agreements governing Existing Indebtedness and any other agreement, including the Credit Agreement, the 2025 Senior Notes Indenture, the 2027 Senior Notes Indenture, the Intercreditor Agreement and the other Security Documents, as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;

 

(2)            this Indenture, the Notes and the Note Guarantees;

 

(3)            applicable law, rule, regulation or order;

 

(4)            any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

 

(5)            customary non-assignment provisions in contracts, licenses and other commercial agreements entered into in the ordinary course of business;

 

(6)            purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;

 

(7)            any agreement for the sale or other disposition of all or substantially all of the Capital Stock or assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;

 

 

(8)            Permitted Refinancing Indebtedness; provided that the encumbrances or restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are, in the good faith judgment of the senior management or Board of Directors of the Company, not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

 

(9)            any restriction on the transfer of assets under any Lien permitted under this Indenture imposed by the holder of the Lien;

 

(10)          provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business or with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;

 

(11)         restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and

 

(12)         any other agreement governing Indebtedness incurred after the date of this Indenture that contains encumbrances or other restrictions that are, in the good faith judgment of the Company, no more restrictive in any material respect taken as a whole than those encumbrances and other restrictions that are customary in comparable financings.

 

Section 4.09          Incurrence of Indebtedness and Issuance of Preferred Stock.

 

(a)            The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, (collectively, “incur”) with respect to any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.

 

(b)            The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):

 

(1)            the incurrence by the Company and any of its Restricted Subsidiaries of (A) Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (including amounts incurred and outstanding pursuant to clause (B) of this clause (1)) not to exceed the greater of (x) $1,400 million, and (y) any additional amount, if after giving pro forma effect to the incurrence of such additional amount and the application of proceeds therefrom, the Consolidated Secured Leverage Ratio would be no greater than 4.25 to 1.00 (provided, that solely for the purpose of determining compliance with this clause (1)(A)(y) of this covenant, any Indebtedness that is incurred and outstanding or proposed to be incurred, in each case pursuant to this clause (1)(A)(y) will be deemed to be Total Secured Debt for purposes of calculating the Consolidated Secured Leverage Ratio) and (B) any Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (1);

 

 

(2)            the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;

 

(3)            the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;

 

(4)            the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Company or any of its Restricted Subsidiaries (whether through the direct purchase of assets or the Equity Interests of any Person owning such assets), in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed the greater of (i) 4.0% of Total Assets or (ii) $150.0 million at any time outstanding;

 

(5)            the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (2), (3), (4), (5), (16) or (17) of this Section 4.09(b);

 

(6)            the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:

 

(a)             if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and

 

(b)             (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);

 

(7)          the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:

 

(a)             any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and

 

(b)             any sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (7);

 

 

(8)            the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;

 

(9)            the Note Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Note Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;

 

(10)          the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of bankers’ acceptances, performance, bid and surety bonds and completion guarantees provided in the ordinary course of business;

 

(11)          the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;

 

(12)         the incurrence of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or a Restricted Subsidiary, other than the Note Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Restricted Subsidiary for the purpose of financing such acquisition; provided, however, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and Restricted Subsidiaries in connection with such disposition;

 

(13)         the incurrence of Indebtedness owed to any Person in connection with worker’s compensation, self-insurance, health, disability or other employee benefits or property, casualty or liability insurance provided by such Person to the Company or any of its Restricted Subsidiaries, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business and consistent with past practices;

 

(14)         pledges, deposits or payments made or given in the ordinary course of business in connection with or to secure statutory, regulatory or similar obligations, including obligations under health, safety or environmental obligations, or arising from guarantees to suppliers, lessors, licenses, contractors, franchisees or customers of obligations, other than Indebtedness, made in the ordinary course of business;

 

(15)         the incurrence of Indebtedness by the Company or any of its Restricted Subsidiaries issued to directors, officers or employees of the Company or any of its Restricted Subsidiaries in connection with the redemption or purchase of Capital Stock that, by its terms, is subordinated to the Notes, is not secured by any assets of the Company or any of its Restricted Subsidiaries and does not require cash payments prior to the Stated Maturity of the Notes, in an aggregate principal amount at any time outstanding not to exceed $5.0 million;

 

 

(16)          the incurrence of (x) Indebtedness by the Company or any Restricted Subsidiary to finance an acquisition (including, without limitation, by way of a merger) of Capital Stock of any Person engaged in, or assets used or useful in, a Permitted Business or (y) Acquired Debt; provided that the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such Indebtedness is incurred would have been at least 1.75 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the Indebtedness had been incurred at the beginning of such four-quarter period; and

 

(17)          the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (17), not to exceed the greater of (i) 4.0% of Total Assets or (ii) $150.0 million.

 

The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior priority basis.

 

For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (17) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Notwithstanding the foregoing, Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued and authenticated under this Indenture will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of “Permitted Debt” only and may not be reclassified. Indebtedness under Credit Facilities (other than the Notes and Indebtedness under the Credit Agreement) outstanding on the date on which the Notes are first issued and authenticated under this Indenture will initially be deemed to be incurred pursuant to clause (2) of the definition of “Permitted Debt.” The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.

 

In connection with the incurrence or issuance, as applicable, of (x) revolving loan Indebtedness under this covenant or (y) any commitment (including for revolving loan Indebtedness) or other transaction relating to the incurrence or issuance of Indebtedness, Disqualified Stock or preferred stock under this covenant and the granting of any Lien to secure such Indebtedness, in each case in reliance on a basket requiring calculation of the Consolidated Secured Leverage Ratio, the Company or applicable Restricted Subsidiary may designate such incurrence or issuance and the granting of any Lien therefor as having occurred on the date of first incurrence of such revolving loan Indebtedness or commitment or intention to consummate such transaction (such date, the “Deemed Date”), and any related subsequent actual incurrence or issuance and granting of such Lien therefor will be deemed to have been incurred or issued and granted on such Deemed Date for purposes of calculating the Consolidated Secured Leverage Ratio (and all such calculations of the Consolidated Secured Leverage Ratio on and after the Deemed Date until the termination of such commitment, including as a result of funding a non-revolving commitment, or until such transaction is consummated or abandoned or such election is rescinded shall be made on a pro forma basis giving effect to the deemed incurrence or issuance, the granting of any Lien therefor and related transactions in connection therewith). Any such election may be rescinded at any time, provided that such rescission does not cause a Default as a result of the provisions of this paragraph ceasing to be applicable.

 

 

The amount of any Indebtedness outstanding as of any date will be:

 

(1)            the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

 

(2)            the principal amount of the Indebtedness, in the case of any other Indebtedness; and

 

(3)            in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

 

(A)            the Fair Market Value of such assets at the date of determination; and

 

(B)             the amount of the Indebtedness of the other Person.

 

Section 4.10          Asset Sales.

 

The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

 

(1)            the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale), as determined in good faith by the Company, of the assets or Equity Interests issued or sold or otherwise disposed of; and

 

(2)            at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:

 

(A)            any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets and the Company or such Restricted Subsidiary is released from further liability;

 

(B)             any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after such Asset Sale, to the extent of the cash received in that conversion;

 

(C)             any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $115.0 million or (ii) 3.0% of Total Assets, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and with giving effect to subsequent changes in value; and

 

 

(D)             any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10.

 

Any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Permitted Lien or exercise by the related lienholder of rights with respect to any of the foregoing, including by deed or assignment in lieu of foreclosure, will not be required to satisfy the conditions set forth in the preceding paragraph. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds, at its option:

 

(1)        (x) to repay, prepay or permanently reduce Pari Passu Obligations other than the Notes (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto); provided that if the Company or any Restricted Subsidiary will so repay, prepay or permanently reduce any such Pari Passu Obligations (other than the Notes), the Company shall equally and ratably reduce Obligations under the Notes through an “Optional Redemption,” open-market purchases or in privately negotiated transactions at market prices (which may be below par) or in connection with an Asset Sale Offer at a purchase price equal to 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the repurchase date, (y) (i) to redeem the Notes as provided under Section 3.07, or (ii) to make an offer (in accordance with the procedures set forth herein for an Asset Sale Offer) to all Holders to purchase their Notes at a purchase price equal to 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to the repurchase date, it being understood that if such offer is made but any Holders decline, it will satisfy this requirement or (z) if the assets or property disposed of in the Asset Sale were not Collateral, to repay any Indebtedness of a Restricted Subsidiary that is not a Guarantor;

 

(2)        to acquire all or substantially all of the assets of another Permitted Business, or to acquire any Capital Stock of another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;

 

(3)        to make a capital expenditure;

 

(4)        to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or

 

(5)        any combination of the foregoing clauses (1) through (4).

 

In the case of clauses (2) and (4) above, the Company will be deemed to have complied with its obligations in the preceding paragraph if it enters into a binding commitment to acquire such assets or Capital Stock prior to 360 days after the receipt of the applicable Net Proceeds; provided that such binding commitment will be subject only to customary conditions and such acquisition is completed within 180 days following the expiration of the aforementioned 360 day period. If the acquisition contemplated by such binding commitment is not consummated on or before such 180th day, and the Company has not applied the applicable Net Proceeds for another purpose permitted by the preceding paragraph on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.

 

 

Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, within 30 days thereof, the Company will make an Asset Sale Offer to all Holders, and all other Pari Passu Obligations which require such offer pursuant to provisions similar to those set forth in this Indenture with respect to offers, to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum principal amount of Notes and such other Pari Passu Obligations (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Obligations tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other Pari Passu Obligations to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

 

Any Asset Sale Offer will be made in compliance with all applicable laws, rules and regulations, including, if applicable, Regulation 14e-1 under the Exchange Act and the rules thereunder and all other applicable Federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company’s compliance with those laws and regulations will not in and of itself cause a breach of its obligations under this Section 4.10.

 

Section 4.11          Transactions with Affiliates.

 

(a)            The Company will not, and will not permit any of its Restricted Subsidiaries to, on or after the date of this Indenture, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”) involving aggregate consideration in excess of $5.0 million, unless:

 

(1)            the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate of the Company; and

 

(2)            the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company or, if none, a disinterested representative appointed by the Board of Directors for such purpose.

 

 

(b)            The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:

 

(1)            any employment agreement, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;

 

(2)            transactions between or among the Company and/or its Restricted Subsidiaries;

 

(3)            transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

 

(4)            fees and compensation paid to officers and employees of the Company or any Restricted Subsidiaries, to the extent such fees and compensation are reasonable and customary, and payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Company;

 

(5)            any issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to Affiliates, employees, officers and directors of the Company or any of its Restricted Subsidiaries;

 

(6)            Restricted Payments that are permitted by Section 4.07 hereof;

 

(7)            maintenance in the ordinary course of business of customary benefit programs or arrangements for employees, officers or directors, including vacation plans, health and life insurance plans, deferred compensation plans and retirement or savings plans and similar plans;

 

(8)            loans or advances to employees that are permitted under the definition of Permitted Investments contained herein;

 

(9)            any agreement as in effect and entered into as of the date of this Indenture, or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the date of this Indenture;

 

(10)          any transaction or series of transactions between the Company or any Restricted Subsidiary and any of their Joint Ventures; provided that (a) such transaction or series of transactions is in the ordinary course of business between the Company or such Restricted Subsidiary and such Joint Venture and (b) with respect to any such Affiliate Transaction involving aggregate consideration in excess of $25.0 million, such Affiliate Transaction complies with Section 4.11(a)(1) hereof and such Affiliate Transaction has been approved by the Board of Directors of the Company; and

 

(11)          any service, purchase, lease, supply or similar agreement entered into in the ordinary course of business between the Company or any Restricted Subsidiary and any Affiliate that is a customer, client, supplier or purchaser or seller of goods or services, so long as the senior management or Board of Directors of the Company determines in good faith that any such agreement is on terms not materially less favorable to the Company or such Restricted Subsidiary than those that could be obtained in a comparable arms’-length transaction with an entity that is not an Affiliate.

 

 

Section 4.12          Liens.

 

(a)            The Company will not, and will not permit any Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind (other than Permitted Liens) to secure Indebtedness of any kind on any asset now owned or hereafter acquired constituting Collateral.

 

(b)            The Company will not, and will not permit any Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind (other than Permitted Liens) to secure Indebtedness of any kind on any asset now owned or hereafter acquired not constituting Collateral, unless all payments due under this Indenture and the Notes are secured on an equal and ratable basis with the obligations so secured (or, if such obligations are subordinated by their terms to the Notes or the Note Guarantees, senior in priority to the obligations so secured) until such time as such obligations are no longer secured by a Lien.

 

(c)            Any Lien created for the benefit of the Holders pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien that gave rise to the obligation to so secure the Notes or the Note Guarantees.

 

Section 4.13          Business Activities.

 

The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole, as reasonably determined in good faith by the Board of Directors of the Company.

 

Section 4.14          [Reserved].

 

Section 4.15         Offer to Repurchase Upon Change of Control.

 

(a)            If a Change of Control occurs, each Holder will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to the terms set forth herein (a “Change of Control Offer”). In the Change of Control Offer (subject to the conditions required by applicable law, if any), the Company will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company will send a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”), pursuant to the procedures required by this Indenture and described in such notice. Holders electing to have Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice of Change of Control Offer prior to the close of business on the third Business Day prior to the Change of Control Payment Date.

 

Any Change of Control Offer will be made in compliance with all applicable laws, rules and regulations, including, if applicable, Regulation 14e-1 under the Exchange Act and the rules thereunder and all other applicable Federal and state securities laws in connection with the repurchase of the Notes pursuant to the Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.15, the Company’s compliance with those laws and regulations will not in and of itself cause a breach of its obligations under this Section 4.15.

 

 

(b)            On the Change of Control Payment Date, the Company will, to the extent lawful:

 

(1)            accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

 

(2)            deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

 

(3)            deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.

 

The Paying Agent will promptly send to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder new Notes equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

 

The Company will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.

 

Section 4.16         [Reserved].

 

Section 4.17         Limitation on Sale and Leaseback Transactions.

 

The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction; provided that the Company or any Guarantor may enter into a sale and leaseback transaction if:

 

(1)            the Company or that Guarantor, as applicable, could have (a) incurred Indebtedness in an amount equal to the Attributable Debt relating to such sale and leaseback transaction under the Fixed Charge Coverage Ratio test in Section 4.09(a) hereof and (b) incurred a Lien to secure such Indebtedness pursuant to the provisions of Section 4.12 hereof;

 

(2)            the gross cash proceeds of that sale and leaseback transaction are at least equal to the Fair Market Value of the property that is the subject of that sale and leaseback transaction; and

 

(3)            the transfer of assets in that sale and leaseback transaction is permitted by, and the Company applies the proceeds of such transaction in compliance with, Section 4.10 hereof.

 

 

Section 4.18         [Reserved].

 

[Reserved]

 

Section 4.19         Additional Note Guarantees.

 

If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic Subsidiary after the date of this Indenture, then that newly acquired or created Domestic Subsidiary will become a Guarantor and execute and deliver a supplemental indenture providing for a Guarantee, execute and deliver a supplement or joinder to the applicable Security Documents or new Security Documents and take all actions required thereunder to perfect the Liens created thereunder with the priority required under this Indenture and deliver an Opinion of Counsel (subject to customary assumptions and exceptions) satisfactory to the Trustee within 10 Business Days of the date on which it was acquired or created; provided that any Domestic Subsidiary that constitutes an Immaterial Subsidiary need not become a Guarantor until such time as it ceases to be an Immaterial Subsidiary. The form of such supplemental indenture and the related additional Notation of Guarantee are each attached hereto as Exhibit C and Exhibit B, respectively.

 

Section 4.20         Designation of Restricted and Unrestricted Subsidiaries.

 

The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.

 

Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate and Opinion of Counsel certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would result following such designation.

 

 

Section 4.21         Effectiveness of Covenants.

 

(a)            If after the date of this Indenture, (1) the Notes have an Investment Grade Rating from two of the Rating Agencies and (2) no Default has occurred and is continuing under this Indenture, then, the Company and its Restricted Subsidiaries will not be subject to the following provisions of this Indenture (collectively, the “Suspended Covenants”):

 

(1)           Section 4.07;

 

(2)           Section 4.08;

 

(3)           Section 4.09;

 

(4)           Section 4.10;

 

(5)           Section 4.11;

 

(6)           Section 4.15; and

 

(7)           Section 5.01(b)(4).

 

(b)            If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any Rating Agency, then the Suspended Covenants will thereafter be reinstated with respect to future events (the “Reinstatement Date”), unless and until the Notes subsequently attain an Investment Grade Rating from two of the Ratings Agencies and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating from two of the Ratings Agencies and no Default or Event of Default is in existence); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below), or any actions taken at any time pursuant to any contractual obligation arising prior to the Reinstatement Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the date of suspension of the covenants and the Reinstatement Date is referred to as the “Suspension Period.” The Company will notify the Trustee of the commencement or termination of any Suspension Period.

 

(c)            In the event of any reinstatement, all Indebtedness incurred during the Suspension Period will be classified to have been incurred pursuant to Section 4.09(b)(2) hereof and all Restricted Payments made after such reinstatement will be calculated as though the limitations contained in Section 4.07 hereof had been in effect prior to, but not during, the Suspension Period.

 

(d)            For purposes of Section 4.08 hereof, on the Reinstatement Date, any consensual encumbrances or restrictions of the type specified in Section 4.08(a)(1), 4.08(a)(2) or 4.08(a)(3) hereof entered into during the Suspension Period will be deemed to have been in effect on the date of this Indenture, so that they are permitted under Section 4.08(a) hereof.

 

(e)            For purposes of Section 4.11 hereof, any Affiliate Transaction entered into after the Reinstatement Date pursuant to a contract, agreement, loan, advance or guaranty with, or for the benefit of, any Affiliate of the Company entered into during the Suspension Period will be deemed to have been in effect as of the date of this Indenture for purposes of Section 4.11(b)(6) hereof.

 

(f)            During any period when the Suspended Covenants are suspended, the Board of Directors of the Company may not designate any of the Subsidiaries of the Company as Unrestricted Subsidiaries pursuant to this Indenture.

 

 

ARTICLE 5
SUCCESSORS

 

Section 5.01        Merger, Consolidation, or Sale of Assets.

 

The Company will not, directly or indirectly:

 

(a)            consolidate or merge with or into another Person (whether or not the Company is the surviving entity); or

 

(b)            sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets (such amounts to be computed on a consolidated basis) of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:

 

(1)            either: (x) the Company is the surviving corporation; or (y) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is either (i) a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia or (ii) a partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia that has at least one Restricted Subsidiary that is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia, which corporation becomes the co-issuer of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee;

 

(2)            the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes by supplemental indenture all the obligations of the Company under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee (including supplements or joinders to the Security Documents, as applicable);

 

(3)            immediately after such transaction, no Default or Event of Default exists;

 

(4)            the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, either:

 

(A)            be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof.

 

(B)            have a Fixed Charge Coverage Ratio that is equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such consolidation, merger, sale, assignment, transfer, conveyance or other disposition; and

 

(5)            the Company or the surviving entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable provisions of this Indenture and an Officers’ Certificate that all conditions precedent in this Indenture relating to such transaction have been satisfied.

 

 

In addition, the Company will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person, other than in compliance with this Section 5.01.

 

This Section 5.01 will not apply to:

 

(1)           a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or

 

(2)           any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Restricted Subsidiaries.

 

Section 5.02         Successor Corporation Substituted.

 

Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of, premium on, if any, and interest, if any, on, the Notes except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof.

 

ARTICLE 6
DEFAULTS AND REMEDIES

 

Section 6.01        Events of Default.

 

Each of the following will be an “Event of Default”:

 

(1)           default for 30 consecutive days in the payment when due of interest on the Notes;

 

(2)           default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;

 

(3)           failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other agreements in this Indenture;

 

(4)           default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture, if that default:

 

 

(A)             is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or

 

(B)             results in the acceleration of such Indebtedness prior to its express maturity,

 

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $20.0 million or more;

 

(5)           failure by the Company or any of its Restricted Subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $20.0 million (net of any amount covered by insurance from an insurer that has not denied liability therefor), which judgments are not paid, discharged or stayed for a period of 60 days after their entry;

 

(6)           except as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee;

 

(7)           (i) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:

 

(A)            commences a voluntary case,

 

(B)            consents to the entry of an order for relief against it in an involuntary case,

 

(C)            consents to the appointment of a custodian of it or for all or substantially all of its property,

 

(D)            makes a general assignment for the benefit of its creditors, or

 

(E)            generally is not paying its debts as they become due; or

 

(ii)           a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(A)            is for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;

 

(B)            appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; or

 

 

(C)            orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;

 

and the order or decree remains unstayed and in effect for 60 consecutive days.

 

(8)           unless all the Collateral has been released from the Liens in accordance with the provisions of this Indenture and the other Security Documents, the Company shall assert or a Guarantor shall assert, in a pleading in a court of competent jurisdiction, with respect to any Collateral having a value in excess of $20.0 million, that any such security interest is invalid or unenforceable and, the Company or such Significant Subsidiary fails to rescind such assertions within 30 days after the Company has actual knowledge of such assertions; or

 

(9)            the failure of the Company or any Guarantor to comply for 60 days after receipt of written notice of failure to comply with a material provision of the Security Documents except for a failure that would not be material to the Holders and would not materially affect the value of the Collateral, taken as a whole.

 

Section 6.02         Acceleration.

 

In the case of an Event of Default specified in clause (7) or (8) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.

 

Section 6.03         Other Remedies.

 

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest, if any, on, the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

 

Section 6.04         Waiver of Past Defaults.

 

The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration or waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes (except nonpayment of principal of, premium on, if any, or interest, if any, on the Notes that has become due solely because of the acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

 

Section 6.05        Control by Majority.

 

Subject to the terms of the Intercreditor Agreement and the other Security Documents, the Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available (including the foreclosure of the Collateral) to the Trustee or exercising any trust or power conferred on it. However, (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines in good faith may be prejudicial to the rights of other Holders or that may involve the Trustee in personal liability (ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

Section 6.06         Limitation on Suits.

 

No Holder may pursue any remedy with respect to this Indenture or the Notes unless:

 

(1)           such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

(2)            Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;

 

(3)            such Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense;

 

(4)           the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and

 

(5)           Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

 

A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders). In the event of any Event of Default specified in Section 6.01(4) above, such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days (or such longer period as may be provided for cure of the default in the agreement under which such default may arise) after such Event of Default arose:

 

(1)            the Indebtedness or Guarantee that is the basis for such Event of Default has been discharged;

 

(2)            Holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or

 

(3)            the default that is the basis for such Event of Default has been cured.

 

Section 6.07          Rights of Holders to Receive Payment.

 

Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, premium on, if any, and interest, if any, on, the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

 

Section 6.08        Collection Suit by Trustee.

 

If an Event of Default specified in Sections 6.01(1) or 6.01(2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium and interest remaining unpaid on, the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

Section 6.09        Trustee May File Proofs of Claim.

 

Subject to the terms of the Intercreditor Agreement and the other Security Documents, the Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 6.10        Priorities.

 

Subject to the provisions of the Intercreditor Agreement and the other Security Documents, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money and property in the following order:

 

First:            to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second:        to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, if any, respectively;

 

 

Third:           without duplication, to the Holders for any other Obligations owing to the Holders under this Indenture and the Notes; and

 

Fourth:        to the Company or to such party as a court of competent jurisdiction shall direct.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

 

Section 6.11        Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.

 

ARTICLE 7
TRUSTEE

 

Section 7.01        Duties of Trustee.

 

(a)            If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

(b)            Except during the continuance of an Event of Default:

 

(1)            the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)            in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

(c)            The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1)           this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

 

(2)            the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

 

(3)            the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

 

(d)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.

 

(e)            No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(f)            The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

Section 7.02        Rights of Trustee.

 

(a)            The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.

 

(b)            Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(c)            The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an Agent, custodian or nominee and the Trustee shall not be responsible for any act or omission by any Depository.

 

(d)            The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

(e)            Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.

 

(f)            The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.

 

(g)            In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(h)            The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of such Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.

 

 

(i)            The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

(j)            The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder (including, for the avoidance of doubt, as Notes Collateral Agent), and each agent, custodian and other Person employed to act hereunder.

 

Section 7.03        Individual Rights of Trustee.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.10 hereof.

 

Section 7.04        Trustee’s Disclaimer.

 

The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

Section 7.05        Notice of Defaults.

 

If a Default or Event of Default occurs and is continuing and if written notice of such is received by a Responsible Officer of the Trustee, the Trustee will send to Holders a notice of the Default or Event of Default within 90 days after it receives such notice. Except in the case of a Default or Event of Default in payment of principal of, premium on, if any, or interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.

 

Section 7.06        [Reserved].

 

[Reserved]

 

Section 7.07          Compensation and Indemnity.

 

(a)            The Company will pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services; provided, however, that the Company need not reimburse any expense or indemnity against any loss or liability determined to have been caused by the Trustee’s own negligence or willful misconduct. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

 

(b)            The Company and the Guarantors, jointly and severally, will indemnify the Trustee (in any capacity under this Indenture) against any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the reasonable costs and expenses of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense shall have been caused by its own negligence or willful misconduct. The Trustee will notify the Company promptly of any claim of which it has received notice for which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.

 

(c)            The obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture.

 

(d)            To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07 until payment in full of such payment obligations, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium on, if any, or interest, if any, on, particular Notes.

          

(e)            When the Trustee incurs expenses or renders services after an Event of Default specified in Sections 6.01(7) or 6.01(8) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

Section 7.08        Replacement of Trustee.

 

(a)            A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

 

(b)            The Trustee may resign in writing at any time and be discharged from the trust hereby created upon 30 days’ written notice to the Company. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying with 10 days prior written notice the Trustee and the Company. The Company may remove the Trustee if:

 

(1)           the Trustee fails to comply with Section 7.10 hereof;

 

(2)            the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(3)            a custodian or public officer takes charge of the Trustee or its property; or

 

(4)            the Trustee becomes incapable of acting.

 

(c)            If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

 

 

(d)            If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee.

 

(e)            If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(f)            A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will send a notice of its succession to Holders. The retiring Trustee, upon payment of its charges hereunder, will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.

 

Section 7.09        Successor Trustee or Notes Collateral Agent by Merger, etc.

 

If the Trustee or Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee or Collateral Agent, as applicable.

 

Section 7.10        Eligibility; Disqualification.

 

There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition.

 

Section 7.11        Limitation on Duty of Trustee in Respect of Collateral; Indemnification.

 

(a)            Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care.

 

(b)            The Trustee shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder (except to the extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the part of the Trustee as determined by a court of competent jurisdiction in a final nonappealable order), for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Intercreditor Agreement or the other Security Documents by the Company, the Guarantors or the Notes Collateral Agent. The Trustee shall have no responsibility to prepare or file any financing statement or continuation statement.

 

 

This Section 7.11 is in furtherance, and not in limitation, of the rights of the Trustee in such capacity.

 

ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

Section 8.01        Option to Effect Legal Defeasance or Covenant Defeasance.

 

The Company may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.

 

Section 8.02        Legal Defeasance and Discharge.

 

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees), and have all Liens on the Collateral securing the Notes released, on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:

 

(1)           the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium on, if any, or interest, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04 hereof;

 

(2)            the Company’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof;

 

(3)            the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in connection therewith; and

 

(4)            this Article 8.

 

Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

 

 

Section 8.03        Covenant Defeasance.

 

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 3.09, 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.17, 4.19 and 4.20 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes, and have all Liens securing the Collateral securing the Notes released, on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(7) hereof will not constitute Events of Default.

 

Section 8.04        Conditions to Legal or Covenant Defeasance.

 

In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:

 

(1)            the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or independent registered public accounting firm, to pay the principal of, premium on, if any, and interest, if any, on, the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;

 

(2)            in the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel (subject to customary assumptions and exceptions) confirming that:

 

(A)            the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or

 

(B)            since the date of this Indenture, there has been a change in the applicable federal income tax law,

 

in either case to the effect that, and based thereon such Opinion of Counsel (subject to customary assumptions and exceptions) shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

 

(3)            in the case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel (subject to customary assumptions and exceptions) confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(4)            no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and in each case the granting of Liens in connection therewith) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;

 

(5)            such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and agreements governing other Indebtedness being defeased, discharged or replaced) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

 

(6)            the Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and

 

(7)            the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel (subject to customary assumptions and exceptions), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

Section 8.05        Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.

 

Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

 

Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

 

Section 8.06        Repayment to Company.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium on, if any, or interest, if any, on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest, if any, has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

Section 8.07        Reinstatement.

 

If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium on, if any, or interest, if any, on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER

 

Section 9.01        Without Consent of Holders.

 

Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors, the Trustee and the Notes Collateral Agent may amend, modify or supplement this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or the other Security Documents without the consent of any Holder:

 

(1)           to cure any ambiguity, omission, defect or inconsistency;

 

(2)           to provide for uncertificated Notes in addition to or in place of certificated Notes;

 

(3)           to provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees pursuant to Article 5 or Article 11 hereof;

 

(4)           to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights of any such Holder under this Indenture, the Notes, the Note Guarantees, the Security Documents or the Intercreditor Agreement;

 

 

(5)           to add additional assets as Collateral, to release Collateral from the Liens pursuant to this Indenture and the Security Documents when permitted or required by this Indenture, the Security Documents and/or the Intercreditor Agreement or to modify the Security Documents and/or the Intercreditor Agreement to secure additional extensions of credit and add additional secured creditors holding Obligations that are permitted to constitute Pari Passu Obligations or Junior Lien Obligations pursuant to the terms of this Indenture;

 

(6)           to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act of 1939;

 

(7)           to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the “Description of Notes” section of the Company’s offering memorandum dated September 12, 2023, relating to the initial offering of the Notes, to the extent that such provision in that “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, the Note Guarantees or the Notes, which intent may be evidenced by an Officers’ Certificate to that effect;

 

(8)           to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date hereof;

 

(9)           to comply with the procedures of DTC or the Trustee with respect to the provisions of this Indenture and the Notes relating to transfers and exchanges of Notes or beneficial interests in the Notes; or

 

(10)          to evidence the release of any Guarantor permitted to be released under the terms of this Indenture or to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes.

 

Section 9.02        With Consent of Holders.

 

Except as provided below in this Section 9.02, the Company, the Guarantors, the Trustee and the Notes Collateral Agent may amend, modify or supplement this Indenture (including, without limitation, Section 3.09, 4.10 and 4.15 hereof), the Notes, the Note Guarantees, the Intercreditor Agreement or the other Security Documents with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any past or existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, or interest, if any, on, the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes, the Note Guarantees or the Security Documents may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.

 

Upon the request of the Company, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Sections 7.02, 9.06, 13.04 and 13.05 hereof, the Trustee and/or the Notes Collateral Agent, as applicable, will join with the Company and the Guarantors in the execution of the documentation effecting such amendment, modification or supplement unless such amendment, modification or supplement directly affects the Trustee’s or the Notes Collateral Agent’s own rights, duties or immunities under this Indenture, the Security Documents or otherwise, in which case the Trustee or the Notes Collateral Agent, as applicable, may in its discretion, but will not be obligated to, enter into such documentation.

 

 

It is not necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, modification, supplement or waiver, but it is sufficient if such consent approves the substance thereof.

 

After an amendment, modification, supplement or waiver under this Section 9.02 becomes effective, the Company will send to the Holders affected thereby a notice briefly describing the amendment, modification, supplement or waiver. Any failure of the Company to send such notice, or any defect therein, will not, however, in any way impair or affect the validity of any documentation effecting such amendment, modification, supplement or waiver.

 

However, without the consent of each Holder affected, an amendment, modification, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

 

(1)           reduce the principal amount of Notes whose Holders must consent to an amendment, modification, supplement or waiver;

 

(2)           reduce the principal of or change the fixed maturity of any Notes or alter the provisions with respect to the redemption of the Notes (except with respect to Sections 3.09, 4.10 and 4.15 hereof);

 

(3)           reduce the rate of or change the time for payment of interest, including default interest, on any Note;

 

(4)           waive a Default or Event of Default in the payment of principal of, or premium, if any, or interest on, the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration);

 

(5)           make any Notes payable in money other than that stated in the Notes;

 

(6)           make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders to receive payments of principal of, or interest or premium, if any, on, the Notes;

 

(7)           waive a redemption payment with respect to any Notes (other than a payment required by Sections 3.09, 4.10 or 4.15 hereof);

 

(8)           release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture; or

 

(9)           make any change in the preceding amendment, modification, supplement and waiver provisions that requires each Holder’s consent.

 

Additionally, without the consent of Holders of at least 66 2/3% in principal amount of the Notes then outstanding, no such amendment, modification, supplement, or waiver will release all or substantially all of the Collateral from the Liens securing the Notes and Note Guarantees, other than, as provided under the terms of this Indenture, the Intercreditor Agreement or the other Security Documents.

 

 

Section 9.03        [Reserved].

 

[Reserved]

 

Section 9.04        Revocation and Effect of Consents.

 

Until an amendment, modification, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, modification, supplement or waiver becomes effective. An amendment, modification, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

 

Section 9.05        Notation on or Exchange of Notes.

 

The Trustee may place an appropriate notation about an amendment, modification, supplement or waiver on any Note thereafter authenticated. The Company, in exchange for all Notes, may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, modification, supplement or waiver.

 

Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, modification, supplement or waiver.

 

Section 9.06        Trustee and Notes Collateral Agent to Sign Amendments, etc.

 

The Trustee and the Notes Collateral Agent will sign any amended or supplemental indenture, amended or supplemented Security Document (including any amendment or supplement to the Intercreditor Agreement or any Junior Lien Intercreditor Agreement) authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee and the Notes Collateral Agent. In executing any amended or supplemental indenture, amended or supplemented Security Document, or amendment or supplement to the Intercreditor Agreement, the Trustee and the Notes Collateral Agent shall be provided with and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 13.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture, amended or supplemented Security Document, or amendment or supplement to the Intercreditor Agreement is authorized or permitted by this Indenture and the Security Documents.

 

ARTICLE 10
Collateral

 

Section 10.01        Secured Notes Obligations; Security Documents.

 

(a)            On and after the Issue Date, the due and punctual payment of the principal of, premium and interest on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes and payment and performance of all other Obligations of the Company and the Guarantors to the Holders, the Trustee or the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Security Documents, according to the terms hereunder or thereunder (collectively, the “Secured Notes Obligations”), shall be secured as provided in the Security Documents. For the avoidance of doubt, to the extent any provision of this Indenture conflicts with the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall govern and be controlling.

 

 

(b)            The Trustee and the Company hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral as agent for the benefit of the Holders and the Trustee and pursuant to the terms of the Security Documents (including the Intercreditor Agreement and any Junior Lien Intercreditor Agreement). Each Holder, by accepting a Note, consents and agrees to the terms of the Security Documents (including the Intercreditor Agreement and any Junior Lien Intercreditor Agreement) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture, and authorizes and directs the Notes Collateral Agent to enter into the Security Documents (including the Intercreditor Agreement and any Junior Lien Intercreditor Agreement), whether entered into on or after the Issue Date, and including any amendments, modifications, supplements, restatements, replacements, or extensions thereto in accordance with this Indenture and the Security Documents, and to perform its obligations and exercise its rights thereunder in accordance therewith. If the Company or any Guarantor (i) incurs any Pari Passu Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Pari Passu Obligations entitled to the benefit of the existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement with such changes as the Company may make in its sole discretion; provided that such changes, taken as a whole, are not materially less favorable to the Holders than the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the Pari Passu Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to), without any further consent of any Holder or the Trustee, enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder, and such intercreditor agreement shall thereafter be deemed to be the “Intercreditor Agreement” for all purposes hereunder. If the Company or any Guarantor (i) incurs any Junior Lien Obligations at any time when no Junior Lien Intercreditor Agreement is in effect or at any time when Indebtedness constituting Junior Lien Obligations entitled to the benefit of the existing Junior Lien Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into a Junior Lien Intercreditor Agreement in favor of a designated agent or representative for the holders of the Pari Passu Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to), without any further consent of any Holder or the Trustee, enter into such Junior Lien Intercreditor Agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder. In addition, upon the receipt by the Notes Collateral Agent of a written request of the Company (a “Security Document Order”), the Notes Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any other Security Documents to be executed after the Issue Date (it being agreed and understood that each of the Notes Collateral Agent and the Trustee is hereby authorized to execute and enter into, and shall execute and enter into, without further consent of any Holder, the Security Documents (including the Intercreditor Agreement), in each case, on the Issue Date). Such Security Document Order shall (i) state that it is being delivered to the Notes Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 10.01(b), and (ii) instruct the Notes Collateral Agent to execute and enter into such Security Document. Any such execution of any Security Documents shall be at the direction and expense of the Company, upon delivery to the Notes Collateral Agent of an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent to the execution and delivery of the Security Documents have been satisfied. The Holders, by their acceptance of the Notes, hereby authorize and direct the Notes Collateral Agent to execute such Security Documents.

 

 

Section 10.02        Release of Collateral.

 

The release of property and other assets constituting Collateral from the Liens securing the Notes and the Secured Notes Obligations shall occur automatically and without further action by the Notes Collateral Agent, the Trustee or the Holders under any one or more of the following circumstances:

 

(a)            in whole, upon payment in full (other than any contingent obligation arising thereunder for which a claim has not been asserted) of the principal of, accrued and unpaid interest, if any, and premium, if any, on the Notes;

 

(b)            with respect to any Guarantor, upon the consummation of any transaction effected for a legitimate business purpose and permitted by this Indenture as a result of which such Guarantor ceases to be a Guarantor (including pursuant to a merger with a Subsidiary that is not a Guarantor or a designation or conversion as an Unrestricted Subsidiary, in each case effected for a legitimate business purpose in a transaction permitted by, and pursuant to, this Indenture);

 

(c)            upon (i) any sale or other transfer by the Company or any Guarantor (other than to the Company or any other Guarantor) of any Collateral in a transaction permitted under the Security Documents, (ii) the effectiveness of any written consent to the release of the security interest created under the Security Documents in any Collateral or to the release of any Guarantor from its Guarantee pursuant to the Security Documents, (iii) upon any Collateral becoming Excluded Assets, (iv) any Collateral that is owned by a Guarantor to the extent such Guarantor has been released from its Note Guarantee in accordance with this Indenture or (v) otherwise in accordance with, and as expressly provided for under, this Indenture and the Security Documents;

 

(d)            in whole, upon satisfaction and discharge of this Indenture pursuant to Section 12.01;

 

(e)            upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Note Guarantees and the Security Documents;

 

(f)            upon a legal defeasance or covenant defeasance under this Indenture or a discharge of this Indenture; and

 

(g)            pursuant to the Security Documents (including the Intercreditor Agreement).

 

With respect to any release of Collateral, upon receipt of an Officers’ Certificate and an Opinion of Counsel in compliance with this Indenture, the Trustee or the Notes Collateral Agent, as applicable, shall execute, deliver or acknowledge (at the Company’s expense) any instruments or releases reasonably requested by the Company to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents (including the Intercreditor Agreement) related thereto and to reconvey to the Company and the applicable Guarantors without recourse, representation or warranty such Collateral, and shall deliver such Collateral in its possession to the Company and the applicable Guarantors. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate and Opinion of Counsel.

 

Section 10.03        Suits to Protect the Collateral.

 

Subject to applicable provisions of the Intercreditor Agreement and the other Security Documents, the Trustee, without the consent of the Holders, on behalf of the Holders, may or may direct the Notes Collateral Agent to take all actions it determines in order to:

 

(a)            enforce any of the terms of the Security Documents; and

 

(b)            collect and receive any and all amounts payable in respect of the Secured Notes Obligations.

 

 

Subject to the provisions of the Security Documents (including the Intercreditor Agreement), the Trustee and the Notes Collateral Agent shall have power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this Indenture, and such suits and proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing in this Section 10.03 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.

 

Section 10.04        Authorization of Receipt of Funds by the Trustee under the Security Documents.

 

Subject to the provisions of the Intercreditor Agreement, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Security Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.

 

Section 10.05        Purchaser Protected.

 

In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article 10 to be sold be under any obligation to ascertain or inquire into the authority of the Company or the applicable Guarantor to make any such sale or other transfer.

 

Section 10.06        Powers Exercisable by Receiver or Trustee.

 

In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 10 upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article 10; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.

 

Section 10.07        Collateral Agent.

 

(a)           Each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Intercreditor Agreement and the other Security Documents, and each of the Holders by acceptance of the Notes hereby irrevocably authorizes and directs the Notes Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Intercreditor Agreement and the other Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Intercreditor Agreement and the other Security Documents, and consents and agrees to the terms of the Intercreditor Agreement and each other Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 10.07. The provisions of this Section 10.07 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders or any of the Company or the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the other Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Intercreditor Agreement and the other Security Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Intercreditor Agreement and the other Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor Agreement or the other Security Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral 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 merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

 

 

(b)           The Notes Collateral Agent may perform any of its duties under this Indenture, the Intercreditor Agreement or the other Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care.

 

(c)           None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Documents or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Guarantor or Affiliate of the Company or any Guarantor, or any Officer or Related Person thereof, contained in this Indenture, the Intercreditor Agreement or the other Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or the other Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Intercreditor Agreement or the other Security Documents, or for any failure of the Company or any Guarantor or any other party to this Indenture, the Intercreditor Agreement or the other Security Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Intercreditor Agreement or the other Security Documents or to inspect the properties, books, or records of the Company or any Guarantor or any of their respective Affiliates.

 

(d)           The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or email) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document.

 

 

(e)           The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.”

 

(f)           The Notes Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction, at the expense of the Company, to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.

 

(g)           Except as otherwise explicitly provided herein or in the Security Documents, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Notes Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.

 

(h)           The Notes Collateral Agent is authorized and directed to (i) enter into the Security Documents to which it is party, on or after the Issue Date, whether executed on or after the Issue Date (including, for avoidance of doubt, the Intercreditor Agreement and any Junior Lien Intercreditor Agreement), (ii) make any representations of the Holders set forth in the Security Documents, (iii) bind the Holders on the terms as set forth in the Security Documents and (iv) perform and observe its obligations under the Security Documents.

 

(i)            If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Secured Notes Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Notes Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent such proceeds to be applied by the Notes Collateral Agent pursuant to the terms of this Indenture, the Intercreditor Agreement and the other applicable Security Documents.

 

 

(j)            The Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.

 

(k)           The Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any Guarantor or is cared for, protected, or insured or has been encumbered, or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Company’s or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this Indenture, the Intercreditor Agreement or any other Security Documents other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Notes Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.

 

(l)            No provision of this Indenture, the Intercreditor Agreement or any of the other Security Documents shall require the Notes Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders unless it shall have received indemnity satisfactory to the Notes Collateral Agent against potential costs and liabilities incurred by the Notes Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement or the other Security Documents, in the event the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Notes Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Notes Collateral Agent in its sole discretion, protecting the Notes Collateral Agent from all such liability. The Notes Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.

 

(m)          The Notes Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreement and the other Security Documents or instruments referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Company (and money held in trust by the Notes Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Notes Collateral Agent shall not be construed to impose duties to act.

 

 

(n)            The Notes Collateral Agent shall not be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. The Notes Collateral Agent shall not be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.

 

(o)            Beyond the exercise of reasonable care in the custody of the Collateral in its possession, the Notes Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Notes Collateral Agent will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and the Notes Collateral Agent will not be liable or responsible for any loss or diminution in the value of any of the collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Notes Collateral Agent with due care.

 

(p)            The Notes Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Company or any Guarantor under this Indenture, the Intercreditor Agreement and the other Security Documents. The Notes Collateral Agent shall not be responsible for the existence, genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien. The Notes Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any this Indenture, the Intercreditor Agreement, any other Security Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or any other Security Documents; the validity, enforceability or collectability of any Secured Notes Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture, the Intercreditor Agreement and the other Security Documents. The Notes Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreement and the other Security Documents unless expressly set forth hereunder or thereunder. Unless this Indenture expressly provides that an action may be taken at the direction of the Company or otherwise without further instruction, the Notes Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of this Indenture, the Intercreditor Agreement and the other Security Documents.

 

(q)            The parties hereto and the Holders hereby agree and acknowledge that the Notes Collateral Agent shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreement, the other Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the Intercreditor Agreement and the other Security Documents, the Notes Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent in the Collateral and that any such actions taken by the Notes Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral.

 

 

(r)            The Notes Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Intercreditor Agreement or the other Security Documents and to the extent not prohibited under the Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.10 and the other provisions of this Indenture.

 

(s)            In each case that the Notes Collateral Agent may or is required hereunder or under the Intercreditor Agreement or the other Security Documents to take any action (an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under the Intercreditor Agreement or the other Security Documents, the Notes Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes (unless such consent is otherwise not required to be obtained in accordance with the terms of this Indenture or the Security Documents or such Action is otherwise expressly required to be taken under this Indenture or the Security Documents, in which case the Notes Collateral Agent shall take such Action in accordance with this Indenture or the Security Documents, as applicable). The Notes Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with this Indenture, the Security Documents, or at the direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. If the Notes Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Notes Collateral Agent shall be entitled to refrain from such Action unless and until the Notes Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Notes Collateral Agent shall not incur liability to any Person by reason of so refraining.

 

(t)            Notwithstanding anything to the contrary in this Indenture, the Intercreditor Agreement or the other Security Documents, in no event shall the Notes Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture, the Intercreditor Agreement or the other Security Documents (including without limitation the filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), the Intercreditor Agreement or the other Security Documents, nor shall the Notes Collateral Agent or the Trustee be responsible for, and neither the Notes Collateral Agent nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby.

 

(u)            Notwithstanding any other provision hereof, neither the Notes Collateral Agent nor the Trustee shall have any duties or obligations under hereunder or under the Intercreditor Agreement or any other Security Documents except those expressly set forth herein or therein. Without limiting the generality of the foregoing, in the event that the Notes Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Notes Collateral Agent’s or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause it to incur liability under CERCLA or any other federal, state or local law, the Notes Collateral Agent and the Trustee each reserves the right, instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Notes Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Notes Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed by any person other than the Company or the Guarantor, the Holders of a majority of the aggregate principal amount of the Notes shall direct the Notes Collateral Agent or Trustee, as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or manage, as the case may be, the Collateral.

 

 

(v)            The rights, privileges, protections, immunities and benefits given to the Trustee on its own behalf (and not on behalf of the Holders), including, without limitation, its right to be compensated, reimbursed and indemnified, are extended to, and shall be enforceable by, the Notes Collateral Agent as if the Notes Collateral Agent were named as the Trustee herein and the Security Documents were named as this Indenture herein.

 

Section 10.08        Voting.

 

In connection with any matter under the Security Documents requiring a vote of holders of Secured Obligations (as defined in the Note Security Agreement), the holders of such Secured Obligations shall be treated as a single class and the Holders shall cast their votes in accordance with this Indenture. The amount of the Notes to be voted by the Holders will equal the aggregate outstanding principal amount of the Notes. Following and in accordance with the outcome of the applicable vote under this Indenture, the Trustee shall vote the total amount of the Notes as a block in respect of any vote under the Security Documents.

 

Section 10.09        No Impairment of the Security Interests.

 

Except as otherwise permitted under this Indenture, the Intercreditor Agreement and the other Security Documents, neither the Company nor any of the Guarantors will be permitted to take any action, or knowingly omit to take any action, which action or omission would have the result of materially impairing the security interest with respect to the Collateral for the benefit of the Trustee, the Notes Collateral Agent and the Holders.

 

ARTICLE 11
NOTE GUARANTEES

 

Section 11.01        Guarantee.

 

(a)            Subject to this Article 11, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee, to the Trustee and its successors and assigns and to the Note Collateral Agent and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:

 

(1)           the principal of, premium on, if any, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest, if any, on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

 

 

(2)           in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

 

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

(b)            The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

 

(c)            If any Holder, the Notes Collateral Agent or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

 

(d)            Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.

 

Section 11.02        Limitation on Guarantor Liability.

 

Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 11, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

 

 

Section 11.03        Execution and Delivery of Note Guarantee.

 

To evidence its Note Guarantee set forth in Section 11.01 hereof, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit B hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.

 

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

 

If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.

 

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

 

In the event that the Company or any of its Restricted Subsidiaries creates or acquires any Domestic Subsidiary after the date of this Indenture, if required by Section 4.19 hereof, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.19 hereof and this Article 11, to the extent applicable.

 

Neither the Company nor any Guarantor shall be required to make a notation on the Notes to reflect a Note Guarantee or any release, termination or discharge thereof.

 

Section 11.04        Guarantors May Consolidate, etc., on Certain Terms.

 

Except as otherwise provided in Section 11.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than (i) the Company or another Guarantor or (ii) an Affiliate of the Company solely for the purpose of reincorporating or reorganizing in the United States or any state thereof, unless:

 

(1)           immediately after giving effect to such transaction, no Default or Event of Default exists; and

 

(2)           either:

 

(a)            subject to Section 11.05 hereof, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) assumes all the obligations of that Guarantor under this Indenture, its Note Guarantee on the terms set forth herein or therein, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee; or

 

(b)            the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation, Section 4.10 hereof.

 

In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and reasonably satisfactory in form and substance to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

 

 

Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b) above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.

 

Section 11.05        Releases.

 

(a)            In the event of any sale or other disposition of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, then the Person acquiring the property will be automatically released and relieved of any obligations under the Note Guarantee;

 

(b)            In the event of any sale or other disposition of all of the Capital Stock of any Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company and such Guarantor ceases to be a Restricted Subsidiary of the Company as a result of the sale or other disposition, then such Guarantor will be automatically released and relieved of any obligations under its Note Guarantee;

 

provided, in both cases, that the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation Section 4.10 hereof, the Trustee will execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.

 

(c)            Upon designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee.

 

(d)            Upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance with Article 12 hereof, each Guarantor will be automatically released and relieved of any obligations under its Note Guarantee.

 

(e)            If such Guarantor no longer constitutes a Domestic Subsidiary, such Guarantor will be automatically released and relieved of any obligations under its Note Guarantee.

 

(f)           If determined in good faith by the Company that a liquidation, dissolution or merger out of existence of such Guarantor is in the best interests of the Company and is not materially disadvantageous to the Holders, such Guarantor will be automatically released and relieved of any obligations under its Note Guarantee.

 

 

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 11.05 will remain liable for the full amount of principal of, premium on, if any, and interest, if any, on, the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 11.

 

ARTICLE 12
Satisfaction and Discharge

 

Section 12.01        Satisfaction and Discharge.

 

This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:

 

(1) either:

 

(a)            all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company or any Guarantor and thereafter repaid to the Company or discharged from their trust, have been delivered to the Trustee for cancellation; or

 

(b)            all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and interest, if any, to the date of maturity or redemption;

 

(2) in respect of subclause (b) of clause (1) of this Section 12.01, no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound (other than with respect to the borrowing of funds to be applied concurrently to make the deposit required to effect such satisfaction and discharge and any similar concurrent deposit relating to other Indebtedness, and in each case the granting of Liens to secure such borrowings);

 

(3) the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

 

(4) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be.

 

In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel (subject to customary assumptions and exceptions) to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

 

 

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof will survive. In addition, nothing in this Section 12.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.

 

Upon satisfaction of the conditions set forth herein and upon written request of the Company, the Trustee shall acknowledge in writing the satisfaction and discharge of this Indenture.

 

Section 12.02        Application of Trust Money.

 

Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 12.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

 

If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 12.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01 hereof; provided that if the Company has made any payment of principal of, premium on, if any, or interest, if any, on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

 

Notwithstanding anything in this Article 12 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 12.01 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect a discharge in accordance with this Article 12.

 

ARTICLE 13
MISCELLANEOUS

 

Section 13.01        [Reserved].

 

[Reserved]

 

 

Section 13.02        Notices.

 

Any notice or communication by the Company, any Guarantor, the Trustee or the Notes Collateral Agent to the others is duly given if in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the others’ address:

 

If to the Company and/or any Guarantor:

 

B&G Foods, Inc.
Four Gatehall Drive, Suite 110
Parsippany, NJ 07054
Facsimile No.: (973) 401-6550
Attention: Executive Vice President, General Counsel, Secretary and Chief Compliance Officer

 

With a copy to:
Dechert LLP
Cira Centre
2929Arch Street
Philadelphia, PA 19104
Facsimile No.: (215) 994-2222
Attention: Stephen Leitzell, Esq.

 

If to the Trustee or Notes Collateral Agent:
The Bank of New York Mellon Trust Company, N.A.
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Facsimile No.: (412) 234-7535
Attention: Corporate Trust Administration

 

The Company, any Guarantor, the Trustee or the Notes Collateral Agent, by notice to the others, may designate additional or different addresses for subsequent notices or communications.

 

All notices and communications (other than those sent to the Trustee, the Notes Collateral Agent and the Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. All notices and communications will be deemed to have been duly given when received by a Responsible Officer of the Trustee or the Notes Collateral Agent, as applicable.

 

Any notice or communication to a Holder will be delivered electronically or mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.

 

The Trustee and the Notes Collateral Agent shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee and the Notes Collateral Agent an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee and the Notes Collateral Agent Instructions using Electronic Means and the Trustee and the Notes Collateral Agent in its discretion elects to act upon such Instructions, the Trustee’s and the Notes Collateral Agent’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee and the Notes Collateral Agent cannot determine the identity of the actual sender of such Instructions and that the Trustee and the Notes Collateral Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee and the Notes Collateral Agent have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and the Notes Collateral Agent and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee and the Notes Collateral Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s and the Notes Collateral Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee and the Notes Collateral Agent, including without limitation the risk of the Trustee and the Notes Collateral Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and the Notes Collateral Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee and the Notes Collateral Agent immediately upon learning of any compromise or unauthorized use of the security procedures.

 

 

Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption or repurchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee, including by electronic mail in accordance with accepted practices at DTC.

 

If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

 

If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.

 

Section 13.03        [Reserved].

 

[Reserved]

 

Section 13.04        Certificate and Opinion as to Conditions Precedent.

 

Upon any request or application by the Company and/or any Guarantor to the Trustee to take any action under this Indenture, the Company and/or any Guarantor shall furnish to the Trustee:

 

(1)           an Officers’ Certificate (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and

 

(2)           an Opinion of Counsel (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with,

 

provided that an issuer of an Opinion of Counsel may rely as to matter of fact on an Officers’ Certificate or a certificate of a public official.

 

 

Section 13.05        Statements Required in Certificate or Opinion.

 

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture must include:

 

(1)           a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(2)           a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)           a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

 

Section 13.06        Rules by Trustee and Agents.

 

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

Section 13.07        No Personal Liability of Directors, Officers, Employees, Affiliates and Stockholders.

 

No past, present or future director, officer, employee, direct or indirect incorporator, Affiliate, stockholder or controlling Person, of the Company or any Guarantor, as such, or any successor entity, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.

 

Section 13.08        Governing Law.

 

THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

Section 13.09        No Adverse Interpretation of Other Agreements.

 

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

Section 13.10        Successors.

 

All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee and Notes Collateral Agent in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 11.05 hereof.

 

 

Section 13.11        Severability.

 

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

Section 13.12        Counterpart Originals.

 

The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Indenture by facsimile, .pdf attachment, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.

 

Section 13.13        Table of Contents, Headings, etc.

 

The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

Section 13.14        Waiver of Jury Trial.

 

EACH OF THE COMPANY, THE GUARANTORS, THE HOLDERS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 13.15        Force Majeure.

 

In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, pandemics, epidemics or recognized public health emergencies, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services; it being understood that the Trustee and the Notes Collateral Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 13.16        Consent to Jurisdiction.

 

Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section 13.02 hereof shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.

 

 

Section 13.17        Foreign Account Tax Compliance Act (FATCA).

 

Upon reasonable request of The Bank of New York Mellon Trust Company, N.A., the Company agrees (i) to provide such reasonable information as it has in its possession to enable The Bank of New York Mellon Trust Company, N.A. to determine whether any payments pursuant to the Indenture are subject to the withholding requirements described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof (“Applicable Law”); provided that, the obligations imposed on the Company under this paragraph are limited to the extent that the provision of such information to The Bank of New York Mellon Trust Company, N.A. will not result in any breach of this Indenture, the Notes or any applicable law, and (ii) that The Bank of New York Mellon Trust Company, N.A. shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law.

 

[Signatures on following page]

 

 

SIGNATURES

 

Dated as of September 26, 2023

 

	B&G FOODS, INC.
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer
	B&G FOODS NORTH AMERICA, INC.,
	as Guarantor
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer
	B&G FOODS SNACKS, INC.,
	as Guarantor
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer
	BEAR CREEK COUNTRY KITCHENS, LLC,
	as Guarantor
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer

 

[Signature Page to Indenture]

 

 

	CLABBER GIRL CORPORATION,
	as Guarantor
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer
	SPARTAN FOODS OF AMERICA, INC.,
	as Guarantor
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer
	VICTORIA FINE FOODS, LLC,
	as Guarantor
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer
	WILLIAM UNDERWOOD COMPANY,
	as Guarantor
	By:	/s/ Bruce C. Wacha
		Name: Bruce C. Wacha
		Title: Executive Vice President of Finance and Chief Financial Officer

 

[Signature Page to Indenture]

 

 

	The Bank of New York Mellon Trust Company, N.A.,
	as Trustee
	By:	/s/ April Bradley
		Name: April Bradley
		Title: Vice President
	The Bank of New York Mellon Trust Company, N.A.,
	as Notes Collateral Agent
	By:	/s/ April Bradley
		Name: April Bradley
		Title: Vice President

 

[Signature Page to Indenture]

 

 

EXHIBIT A

FORM OF NOTE

 

[Face of Note]

 

CUSIP/ISIN ____________¹

 

8.000% Senior Secured Notes due 2028

 

No._____

$____________

 

B&G FOODS, INC., a Delaware corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of ______________________________________________________ DOLLARS on ______________.²

 

Interest Payment Dates: March 15 and September 15

 

Record Dates: March 1 and September 1

 

 

Dated:

 

¹ 144A: 05508W AC9 / US05508WAC91

RegS: U07409 AC6 / USU07409AC68

² To be September 15, 2028 for Initial Notes.

 

 

	B&G FOODS, INC.
	By:
		Name:
		Title:

 

This is one of the Notes referred to in the within-mentioned Indenture:

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee

 

By:
	Authorized Signatory

 

Dated:

 

 

 

[Back of Note]

8.000% Senior Secured Notes due 2028

 

[Global Note Legend]

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.

 

[Restricted Notes Legend]

 

THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY WILL NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) RESELL OR OTHERWISE TRANSFER THIS SECURITY] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S] EXCEPT (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (2) TO THE COMPANY OR ANY SUBSIDIARY THEREOF OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(1)(c) OR (d) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.

 

 

 

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

(1)           Interest. B&G Foods, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 8.000% per annum from September 26, 2023 until maturity. The Company will pay interest, if any, semi-annually in arrears on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be March 15, 2024. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

 

(2)           Method of Payment. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 1 or September 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest, if any, at the office or agency of the Paying Agent and Registrar within or without the City and State of New York, or, at the option of the Company, payment of interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium on, if any, interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

(3)           Paying Agent and Registrar. Initially, The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

 

 

(4)           Indenture. The Company issued the Notes under an indenture dated as of September 26, 2023 (the “Indenture”) among the Company, the Guarantors, the Trustee and The Bank of New York Mellon Trust Company, N.A. as Notes Collateral Agent. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. However, to the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are senior secured obligations of the Company. [This Note is one of the Initial Notes referred to in the Indenture. ]The Indenture permits the issuance of Additional Notes subject to compliance with certain conditions. The Notes include the Initial Notes and any Additional Notes. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture.

  

(5)           Optional Redemption.

 

(a)            At any time prior to September 15, 2025, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture (including Additional Notes, if any), upon not less than 10 nor more than 60 days’ notice, at a redemption price equal to 108.000% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date, (subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date) in an amount not to exceed the net cash proceeds of one or more Equity Offerings of the Company; provided that:

 

(i)            at least 50% of the aggregate principal amount of Notes originally issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and

 

(ii)            the redemption occurs within 90 days of the date of the closing of such Equity Offering.

 

(b)            At any time prior to September 15, 2025, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid interest, if any, to the date of redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date.

 

(c)            Except pursuant to the preceding paragraphs, the Notes will not be redeemable at the Company’s option prior to September 15, 2025.

 

(d)            On or after September 15, 2025, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on September 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:

 

Year			Percentage
2025				104.000	%
2026				102.000	%
2027 and thereafter				100.000	%

 

 

Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

 

(e)            Any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering, other offering or other corporate transaction or event. In addition, the Company may provide in any notice of redemption that payment of the redemption price and the performance of its obligations with respect to such redemption may be performed by another person; provided, however, that the Company shall remain obligated to pay the redemption price and perform its obligations with respect to such redemption in the event such other person fails to do so. Notice of any redemption in respect of an Equity Offering may be given prior to completion thereof. Further, the redemption date of any redemption that is subject to satisfaction of one or more conditions precedent may, in the Company’s discretion, be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and any notice with respect to such redemption may be modified or rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the redemption date, or by the redemption date so delayed (which may exceed 60 days from the date of the redemption notice in such case). In addition, such notice of redemption may be extended if such conditions precedent have not been satisfied or waived by the Company by providing notice to the Holders.

 

(6)           Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. However, for the avoidance of doubt, the Company may be required to offer to purchase Notes as described elsewhere in the Indenture. The foregoing shall be without prejudice to the Company’s ability, at any time and from time to time, to purchase Notes in the open market or otherwise.

 

(7)           Repurchase at the Option of Holder.

 

(a)            If a Change of Control occurs, each Holder will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to the terms set forth herein (a “Change of Control Offer”). In the Change of Control Offer (subject to the conditions required by applicable law, if any), the Company will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”). Within 30 days following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

 

(b)            If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will make an Asset Sale Offer to all Holders, and all other Pari Passu Obligations which require such offer pursuant to provisions similar to those set forth in the Indenture with respect to offers, to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum principal amount of Notes and such other Pari Passu Obligations (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other Pari Passu Obligations tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other Pari Passu Obligations to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Holders that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

 

(8)           Notice of Redemption. At least 10 days but not more than 60 days before a redemption date, the Company will mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture pursuant to Articles 8 or 11 thereof. Any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering, other offering or other corporate transaction or event. Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased.

 

(9)           Denominations, Transfer, Exchange. The Notes are in registered form and shall initially be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.

 

(10)          Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.

 

(11)           Amendment, Supplement and Waiver. The Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement and the other Security Documents may be amended, modified or supplemented as provided in the Indenture or otherwise in accordance with their respective terms.

 

(12)          Defaults and Remedies. The Notes will be subject to provisions with respect to Default, Events of Default and related remedies as provided in the Indenture and the applicable Security Documents.

 

 

(13)          Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.

 

(14)          No Recourse Against Others. No past, present or future director, officer, employee, direct or indirect incorporator, Affiliate, stockholder or controlling Person, of the Company or any Guarantor, as such, or any successor entity, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.

 

(15)          Authentication. This Note will not be valid until authenticated by the manual or electronic signature of the Trustee or an authenticating agent.

 

(16)          Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

(17)          CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.

 

(18)          GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

(19)          Security. The Note will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture, the Intercreditor Agreement and the other Security Documents. The Notes Collateral Agent will hold the Collateral as agent for the benefit of the Trustee and the Holders, in each case, on and after the Issue Date, pursuant to the applicable Security Documents, and subject to the Intercreditor Agreement. Each Holder, by accepting this Note, consents and agrees to the terms of the Intercreditor Agreement and the other Security Documents (including the provisions providing for the foreclosure and release of Collateral), as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Notes Collateral Agent to enter into the Intercreditor Agreement and the other Security Documents on or after the Issue Date, as applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith.

 

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

 

B&G Foods, Inc.

 

 

Four Gatehall Drive, Suite 110

Parsippany, NJ 07054

Attention: Executive Vice President of Finance and Chief Financial Officer

 

 

Assignment Form

 

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:
	(Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint____________________________________________________________________________________________________

to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

Date: _______________

 

	Your Signature:
	(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*: _________________________

 

*            Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

Option of Holder to Elect Purchase

 

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

 

□Section 4.10         □Section 4.15

 

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

 

$_______________

 

Date: _______________

 

	Your Signature:
	(Sign exactly as your name appears on the face of this Note)

 

Tax Identification No.:

 

Signature Guarantee*: _________________________

 

*            Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

Schedule of Exchanges of Interests in the Global Note

 

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global Note or Certificated Note for an interest in this Global Note, have been made:

 

Date of Exchange

Amount of decrease in Principal Amount  at maturity of this Global Note

Amount of increase in Principal Amount  at maturity of this Global Note

Principal Amount at maturity of this Global Note following such decrease (or increase)

Signature of authorized officer of Trustee or Custodian

 

 

EXHIBIT B

 

FORM OF NOTATION OF GUARANTEE

 

 

For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the indenture dated as of September 26, 2023 (the “Indenture”) among B&G Foods, Inc. (the “Company”), the Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) and as Notes Collateral Agent, (a) the due and punctual payment of the principal of, premium on, if any, and interest, if any, on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on over due principal of, premium on, if any, and interest, if any, on, the Notes, if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders, the Trustee and the Notes Collateral Agent all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders, the Trustee and the Notes Collateral Agent pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

 

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

 

	[Name of Guarantor(s)]
	By:
		Name:
		Title:

 

 

EXHIBIT C

 

FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS

 

Supplemental Indenture (this “Supplemental Indenture”), dated as of ________________, 20___, among __________________ (the “Guaranteeing Subsidiary”), a subsidiary of B&G Foods, Inc. (or its permitted successor), a Delaware corporation (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and The Bank of New York Mellon Trust Company, N.A., as trustee under the Indenture referred to below (the “Trustee”) and as notes collateral agent under the Indenture.

 

W I T N E S S E T H

 

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of September 26, 2023 providing for the issuance of 8.000% Senior Secured Notes due 2028 (the “Notes”);

 

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

 

1.            Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

2.            Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 11 thereof.

 

3.            No Recourse Against Others. No past, present or future director, officer, employee, incorporator, Affiliate, stockholder, controlling Person or agent of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, any Note Guarantees, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.

 

4.            NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

5.            Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

 

6.            Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.

 

7.            The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

Dated: _______________, 20___

 

	[Guaranteeing Subsidiary]
	By:
		Name:
		Title:
	B&G FOODS, INC.
	By:
		Name:
		Title:
	[Existing Guarantors]
	By:
		Name:
		Title:
	The Bank of New York Mellon Trust Company, N.A.,
	not in its individual capacity but solely as Trustee and Notes Collateral Agent
	By:
		Name:
		Title:

 

 

EXHIBIT D

 

[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]

 

B&G Foods, Inc.

Four Gatehall Drive, Suite 110

Parsippany, NJ 07054

Attention: Executive Vice President of Finance and Chief Financial Officer

 

The Bank of New York Mellon Trust Company, N.A.

500 Ross Street, 12th Floor

Pittsburgh, PA 15262

Attention: Corporate Trust Administration

 

Re:

B&G Foods, Inc., (“the Company”) 8.000% Senior Secured Notes due 2028 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with our proposed sale of $___________________ aggregate principal amount at maturity of the Notes, we hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A (“Rule 144A”) under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we hereby further certify that the Notes are being transferred to a person that we reasonably believe is purchasing the Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Notes are being transferred in compliance with any applicable blue sky securities laws of any state of the United States.

 

The Company and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

	Very truly yours,
	[Name of Transferor]
	By:
	Authorized Signature

 

 

EXHIBIT E

 

[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]

 

B&G Foods, Inc.

Four Gatehall Drive, Suite 110

Parsippany, NJ 07054

Attention: Executive Vice President of Finance and Chief Financial Officer

 

The Bank of New York Mellon Trust Company, N.A.

500 Ross Street, 12th Floor

Pittsburgh, PA 15262

Attention: Corporate Trust Administration

 

Re:

B&G Foods, Inc., (“the Company”) 8.000% Senior Secured Notes due 2028 (the “Notes”)

 

Ladies and Gentlemen:

 

In connection with our proposed sale of $___________________ aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S (“Regulation S”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:

 

(1)            the offer of the Notes was not made to a person in the United States;

 

(2)            either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither we nor any person acting on our behalf knows that the transaction has been prearranged with a buyer in the United States;

 

(3)            no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and

 

(4)            the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

In addition, if the sale is made during a restricted period and the provisions of Rule 903(b) or Rule 904(b) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b) or Rule 904(b), as the case may be.

 

The Company and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.

 

	Very truly yours,
	[Name of Transferor]
	By:
		Authorized Signature

 

 

 

Exhibit 10.1

 

Execution Version

 

SEVENTH AMENDMENT TO CREDIT AGREEMENT

 

This SEVENTH AMENDMENT to the Credit Agreement referred to below, dated as of September 22, 2023 (this “Seventh Amendment”) by and among B&G FOODS, INC., a Delaware corporation, as borrower (the “Borrower”), and each of B&G FOODS NORTH AMERICA, INC., a Delaware corporation (“B&GNA”), B&G FOODS SNACKS, INC., a Delaware corporation (“B&GS”), BEAR CREEK COUNTRY KITCHENS, LLC, a Delaware limited liability company (“Bear Creek”), BTN FOODS SERVCO CORPORATION, a Delaware limited liability company (“BTN ServCo”), CLABBER GIRL CORPORATION, an Indiana corporation (“CG”), WILLIAM UNDERWOOD COMPANY, a Massachusetts business trust (“WUC”), SPARTAN FOODS OF AMERICA, INC., a Delaware corporation (“Spartan Foods”), and VICTORIA FINE FOODS, LLC, a Delaware limited liability company (“Victoria”) (B&GNA, B&GS, Bear Creek, CG, WUC, Spartan Foods and Victoria, collectively, the “Guarantors”), the Lenders party hereto, and BARCLAYS BANK PLC (“Barclays”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and collateral agent for the Secured Parties (in such capacity, the “Collateral Agent”). Capitalized terms not otherwise defined in this Seventh Amendment have the same meanings as specified in the Credit Agreement (as defined below), as amended by this Seventh Amendment.

 

RECITALS

 

WHEREAS, the Borrower, the several Lenders (as defined in the Credit Agreement) from time to time parties thereto and the Administrative Agent, have entered into that certain Amended and Restated Credit Agreement, dated as of October 2, 2015 (together with all exhibits and schedules attached thereto, as amended by the First Amendment to Credit Agreement, dated as of March 30, 2017, by the Second Amendment to Credit Agreement, dated as of November 20, 2017, by the Third Amendment to Credit Agreement, dated as of October 10, 2019, by the Fourth Amendment to Credit Agreement, dated as of December 16, 2020, by the Fourth Amendment to Credit Agreement, dated as of December 16, 2020, by the Fifth Amendment to Credit Agreement, dated as of June 28, 2022, and by the Sixth Amendment to Credit Agreement, dated as of June 6, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement” as amended by this Seventh Amendment, the “Amended Credit Agreement”);

 

WHEREAS, the Borrower has requested, pursuant to Section 9.1, that the Credit Agreement be amended;

 

WHEREAS, the Lenders constituting at least the Required Lenders are willing to effect the amendments set forth herein and agree to the terms of the Amended Credit Agreement, in each case on the terms and subject to the conditions of this Seventh Amendment;

 

WHEREAS, each Lender under the Credit Agreement immediately prior to the Seventh Amendment Effective Date that executes and delivers a signature page to this Seventh Amendment will be deemed to have consented to the amendments to the Credit Agreement as set forth in this Seventh Amendment, on the terms and subject to the conditions as set forth herein;

 

 

WHEREAS, each Guarantor expects to realize, or has realized, substantial direct and indirect benefits as a result of this Seventh Amendment becoming effective and the consummation of the transactions contemplated hereby.

  

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Article I

 

AMENDMENTS TO CREDIT AGREEMENT

 

Section 1.1                Amendment of Credit Agreement. On the Seventh Amendment Effective Date, the Borrower, the Lenders party hereto comprising at least the Required Lenders, the Administrative Agent and the other parties party hereto agree that, on the Seventh Amendment Effective Date, the Credit Agreement shall hereby be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached hereto as Exhibit A and subject to the satisfaction of the conditions precedent set forth in Article II below.

 

Article II

 

CONDITIONS TO EFFECTIVENESS

 

The effectiveness of this Seventh Amendment (including amendments contained in Article I) is subject to the satisfaction (or written waiver) of the following conditions (the date of satisfaction (or written waiver) of such conditions being referred to herein as the “Seventh Amendment Effective Date”):

 

Section 2.1        This Seventh Amendment shall have been duly executed by the Borrower, the Lenders under the Credit Agreement constituting at least the Required Lenders and the Administrative Agent, and delivered to the Administrative Agent;

 

Section 2.2        All fees and expenses required to be paid hereunder or pursuant to the Amended Credit Agreement shall have been paid in full in cash or will be paid in full in cash on the Seventh Amendment Effective Date, including, without limitation, all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent in connection with the execution and delivery of this Seventh Amendment, in each case to the extent required by the Amended Credit Agreement;

 

Section 2.3        No Default or Event of Default has occurred and is continuing on the Seventh Amendment Effective Date both before and immediately after giving effect to the transactions contemplated hereby; and

 

Section 2.4        The representations and warranties of the Borrower and each of the Guarantors set forth in Article III of this Seventh Amendment are true and correct.

 

 

Article III

 

REPRESENTATIONS AND WARRANTIES

 

To induce the other parties hereto to enter into this Seventh Amendment, the Borrower and each Guarantor represents and warrants to each of the Lenders and the Administrative Agent that, as of the Seventh Amendment Effective Date:

 

(a)            this Seventh Amendment has been duly authorized, executed and delivered by the Borrower and each such Guarantor and constitutes, and the Amended Credit Agreement constitutes, its legal, valid and binding obligation, enforceable against the Borrower and each such Guarantor in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally, and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and by principles of good faith and fair dealing;

 

(b)            each of the representations and warranties made by any Loan Party in or pursuant to the Amended Credit Agreement or any other Loan Document shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects) on and as of the Seventh Amendment Effective Date as if made on and as of the Seventh Amendment Effective Date (unless stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall have been true and correct in all respects) as of such earlier date); and

 

(c)            no Default or Event of Default shall have occurred and be continuing on the Seventh Amendment Effective Date.

 

Article IV

 

Effects on LOAN Documents and reaffirmation of security interests

 

(a)            Except as specifically amended herein or contemplated hereby, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as specifically amended herein or contemplated hereby, the execution, delivery and effectiveness of this Seventh Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Loan Documents. The Borrower acknowledges and agrees that, on and after the Seventh Amendment Effective Date, this Seventh Amendment and each of the other Loan Documents to be executed and delivered by the Borrower in connection herewith shall constitute a Loan Document for all purposes of the Amended Credit Agreement. On and after the Seventh Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement, and this Seventh Amendment and the Amended Credit Agreement shall be read together and construed as a single instrument. Nothing herein shall be deemed to entitle the Borrower or the Guarantors to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances.

 

 

(b)            Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of this Seventh Amendment and consents to the amendment of the Credit Agreement effected pursuant to this Seventh Amendment. Each Guarantor hereby (i) confirms that each Loan Document to which it is a party or is otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Loan Documents, the payment and performance of the Obligations, as the case may be, including without limitation the payment and performance of all such applicable Obligations that are joint and several obligations of each Grantor (as defined in the Guarantee and Collateral Agreement) now or hereafter existing, (ii) confirms its respective grant to the Collateral Agent for the benefit of the Secured Parties of the security interest in and continuing Lien on all of such Loan Party’s right, title and interest in, to and under all “Collateral” as defined in the Guarantee and Collateral Agreement, in each case whether now owned or existing or hereafter acquired or arising and wherever located, as collateral security for the prompt and complete payment and performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all applicable Obligations (including all such Obligations as amended, reaffirmed and/or increased pursuant to this Seventh Amendment), subject to the terms contained in the applicable Loan Documents and (iii) confirms its respective guarantees, pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Loan Documents to which it is a party.

 

(c)            Each Guarantor acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Seventh Amendment.

 

Article V

 

MISCELLANEOUS

 

Section 5.1        Execution by the Administrative Agent. The Administrative Agent is entering into, and signing, this Seventh Amendment in respect of the amendments set forth in Section 1.1 hereof, in accordance with Section 9.1 of the Credit Agreement.

 

Section 5.2        Indemnification. The Borrower hereby confirms that the indemnification provisions set forth in Sections 2.19 (except to the extent waived hereby) and 8.7 of the Amended Credit Agreement shall apply to this Seventh Amendment and the transactions contemplated hereby.

 

 

Section 5.3        Amendments; Execution in Counterparts; Severability.

 

(a)            This Seventh Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the Borrower, the Lenders under the Credit Agreement constituting at least the Required Lenders and the Administrative Agent, in each case to the extent required by the Credit Agreement; and

 

(b)            To the extent any provision of this Seventh Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Seventh Amendment in any jurisdiction.

 

Section 5.4        Administrative Agent. The Borrower acknowledges and agrees that Barclays, in its capacity as administrative agent under the Credit Agreement, will serve as Administrative Agent under this Seventh Amendment and under the Amended Credit Agreement.

 

Section 5.5        Governing Law; Waiver of Jury Trial; Jurisdiction. This Seventh Amendment shall be construed in accordance with and governed by the law of the State of New York. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ITS RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) ARISING OUT OF OR IN CONNECTION WITH THIS SEVENTH AMENDMENT, THE AMENDED CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT. The provisions of Sections 9.11 and 9.12 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.

 

Section 5.6        Headings. Section headings in this Seventh Amendment are included herein for convenience of reference only, are not part of this Seventh Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Seventh Amendment.

 

Section 5.7        Counterparts. This Seventh Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one agreement. The words “execution,” “signed,” “signature,” and words of like import in this Seventh Amendment shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

[Remainder of page intentionally left blank.]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.

 

	Borrower:
	B&G FOODS, INC.
	By:	/s/ Scott E. Lerner
	Name: Scott E. Lerner
	Title:   Executive Vice President, General Counsel, Secretary and Chief Compliance Officer
	Subsidiary Guarantors:

 

	B&G FOODS NORTH AMERICA, INC.
	B&G FOODS SNACKS, INC.
	BEAR CREEK COUNTRY KITCHENS, LLC
	CLABBER GIRL CORPORATION
	WILLIAM UNDERWOOD COMPANY
	SPARTAN FOODS OF AMERICA, INC.
	VICTORIA FINE FOODS, LLc

 

	By:	/s/ Scott E. Lerner
	Name: Scott E. Lerner
	Title:   Executive Vice President, General Counsel, Secretary and Chief Compliance Officer

 

[Signature Page to Seventh Amendment to Credit Agreement]

 

 

	BARCLAYS BANK PLC, as Administrative Agent, Collateral Agent and a Lender

	By:	/s/ Vijay Aiyar
		Name:	Vijay Aiyar
		Title:	Director

 

[Signature Page to Seventh Amendment to Credit Agreement]

  

 

BARCLAYS BANK PLC, as Administrative Agent, Collateral Agent and a Lender

 

	By:	/s/ Vijay Aiyar
		Name:	Vijay Aiyar
		Title:	Director

  

[Signature Page to Seventh Amendment to Credit Agreement]

 

 

Bank of America, N.A., as a Lender

 

	By:	/s/ Jana L. Baker
		Name:	Jana L. Baker
		Title:	Senior Vice President

 

[Signature Page to Seventh Amendment to Credit Agreement]

 

 

	DEUTSCHE BANK AG NEW YORK
	BRANCH, as a Revolving Credit Lender

 

	By:	/s/ Philip Tancorra
		Name:	Philip Tancorra
		Title:	Director
	By:	/s/ Lauren Danbury
		Name:	Lauren Danbury
		Title:	Vice President

 

[Signature Page to Seventh Amendment to Credit Agreement]

 

 

Royal Bank of Canada, as a Lender

 

	By:	/s/ Michael Santana-Mondo
		Name:	Michael Santana-Mondo
		Title:	Authorized Signatory

 

[Signature Page to Seventh Amendment to Credit Agreement]

 

  

BMO Harris Bank N.A., as a Lender

 

	By:	/s/ Jonathan Sarmini
		Name:	Jonathan Sarmini
		Title:	Vice President

 

[Signature Page to Seventh Amendment to Credit Agreement]

 

 

	Citibank, N.A., as a Lender
	By:	/s/ Robert Kane
	Name: Robert Kane
	Title: Vice President

 

 

	JPMORGAN CHASE BANK, N.A., as a Lender
	By:	/s/ Bam Fakorede
	Name: Bam Fakorede
	Title: Vice President

 

 

	Goldman Sachs Bank USA., as a Lender
	By:	/s/ Dan Martis
	Name: Dan Martis
	Title: Authorized Signatory

 

 

	Citizens Bank, N.A., as a Lender
	By:	/s/ Keith Cornacchia
	Name: Keith Cornacchia
	Title: Vice President

 

 

	COÖPERATIEVE RABOBANK U.A.,
	NEW YORK BRANCH, as a Lender
	By:	/s/ André Baladi
	Name: André Baladi
	Title: Managing Director
	By:	/s/ Irene Stephens
	Name: Irene Stephens
	Title: Executive Director

 

 

	TD Bank, N.A., as a Lender
	By:	/s/ Bernadette Collins
	Name: Bernadette Collins
	Title: Senior Vice President

 

 

	Capital One, National Association., as a Lender
	By:	/s/ Timothy A. Ramijanc
	Name: Timothy A. Ramijanc
	Title: Duly Authorized Signatory

 

 

	SUMITOMO MITSUI BANKING CORP., as a Lender
	By:	/s/ Valery Amouroux
	Name: Valery Amouroux
	Title: Director

 

 

	CoBank, ACB., as a Lender
	By:	/s/ John Trawick
	Name: John Trawick
	Title: Vice President

 

 

EXHIBIT A

 

Amended Credit Agreement

 

[See attached.]

 

 

$1,550,000,000.00

AMENDED AND RESTATED CREDIT AGREEMENT

among

B&G FOODS, INC.,
as Borrower

THE LENDERS FROM TIME TO TIME PARTY HERETO

and

BARCLAYS BANK PLC,

as Administrative Agent and Collateral Agent

 

BARCLAYS BANK PLC, DEUTSCHE BANK SECURITIES INC., RBC CAPITAL MARKETS¹, BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP., GOLDMAN SACHS BANK USA

and

JPMORGAN CHASE BANK, N.A.,

as Joint Lead Arrangers and Joint Bookrunners with respect to the Tranche B-4 Term Loan Facility,

 

CREDIT SUISSE SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL ASSOCIATION, CITIGROUP GLOBAL MARKETS INC., CITIZENS BANK, N.A., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH

and

TD SECURITIES (USA) LLC,

as Co-Managers and Co-Documentation Agents with respect to the Tranche B-4 Term Loan Facility,

 

BARCLAYS BANK PLC, DEUTSCHE BANK SECURITIES INC., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS, BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP., CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE LOAN FUNDING LLC, GOLDMAN SACHS BANK USA and JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners with respect to the Fourth Amendment Facilities,

 

CITIZENS BANK, N.A., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, TD SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL ASSOCIATION, SUMITOMO MITSUI BANKING CORPORATION and COBANK, ACB,
as Co-Documentation Agents with respect to the Fourth Amendment Facilities,

 

CREDIT SUISSE SECURITIES (USA) LLC, BARCLAYS BANK PLC,

RBC CAPITAL MARKETS, BANK OF AMERICA, N.A., BOFA SECURITIES, INC.,
DEUTSCHE BANK SECURITIES INC., CITIZENS BANK, N.A.,

TD SECURITIES (USA) LLC

and

COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH
as Joint Lead Arrangers and Joint Bookrunners with respect to the Revolving Credit Facility,

 

BARCLAYS BANK PLC, RBC CAPITAL MARKETS, BANK OF AMERICA, N.A., BOFA SECURITIES, INC.
and DEUTSCHE BANK SECURITIES INC.,
as Co-Syndication Agents with respect to the Revolving Credit Facility,

CITIZENS BANK, N.A., TD BANK, N.A. and COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
as Co-Documentation Agents with respect to the Revolving Credit Facility,

 

Dated as of October 2, 2015,

as amended by the First Amendment to Credit Agreement, dated as of March 30, 2017,

by the Second Amendment to Credit Agreement, dated as of November 20, 2017,

by the Third Amendment to Credit Agreement, dated as of October 10, 2019,

by the Fourth Amendment to Credit Agreement, dated as of December 16, 2020,

by the Fifth Amendment to Credit Agreement, dated as of June 28, 2022, and

 

¹ RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.

 

 

by the Sixth Amendment to Credit Agreement, dated as of June 6, 2023

by the Seventh Amendment to Credit Agreement, dated as of September 22, 2023

 

 

TABLE OF CONTENTS

 

Page

 

Section 1. DEFINITIONS			3
	1.1	Defined Terms	3
	1.2	Other Definitional Provisions	49
	1.3	Pro Forma Basis	49
	1.4	Divisions	51
Section 2. AMOUNT AND TERMS OF COMMITMENTS; LETTERS OF CREDIT			52
	2.1	Term Loan Commitments	52
	2.2	Procedure for Term Loan Borrowings	53
	2.3	Repayment of Term Loans	53
	2.4	Revolving Credit Commitments	54
	2.5	Procedure for Borrowing Revolving Credit Loans	55
	2.6	Repayment of Loans; Evidence of Debt	55
	2.7	Commitment Fees, Other Fees	56
	2.8	Termination or Reduction of Revolving Credit Commitments	57
	2.9	Optional Prepayments	57
	2.10	Mandatory Prepayments	58
	2.11	Conversion and Continuation Options	59
	2.12	Minimum Amounts and Maximum Number of Term Benchmark Tranches	59
	2.13	Interest Rates and Payment Dates	59
	2.14	Computation of Interest and Fees	60
	2.15	Inability to Determine Interest Rate and Alternate Rate of Interest	60
	2.16	Pro Rata Treatment and Payments	62
	2.17	Requirements of Law	64
	2.18	Taxes	65
	2.19	Indemnity	68
	2.20	Illegality	68
	2.21	Change of Lending Office	69
	2.22	Substitution of Lenders	69
	2.23	L/C Commitment	70
	2.24	Procedure for Issuance of Letter of Credit	70
	2.25	Fees and Other Charges	71
	2.26	L/C Participations	71
	2.27	Reimbursement Obligation of the Borrower	72
	2.28	Obligations Absolute	73
	2.29	Letter of Credit Payments	73
	2.30	Applications	73
	2.31	Defaulting Lenders	74

 

 

	2.32	Incremental Loans and Commitments	77
Section 3. REPRESENTATIONS AND WARRANTIES			81
	3.1	Financial Condition	81
	3.2	No Change	82
	3.3	Corporate Existence; Compliance with Law	82
	3.4	Corporate Power; Authorization; Enforceable Obligations	82
	3.5	No Legal Bar	83
	3.6	No Material Litigation	83
	3.7	No Default	83
	3.8	Ownership of Property; Liens	83
	3.9	Intellectual Property	83
	3.10	Taxes	83
	3.11	Federal Regulations	84
	3.12	Labor Matters	84
	3.13	ERISA	84
	3.14	Investment Company Act; Other Regulations	84
	3.15	Subsidiaries	84
	3.16	Use of Proceeds	85
	3.17	Environmental Matters	85
	3.18	Accuracy of Information, etc.	86
	3.19	Security Documents	87
	3.20	Solvency	87
	3.21	Anti-Terrorism Laws; Sanctions; Anti-Corruption Laws	87
	3.22	EEA Financial Institutions	87
Section 4. CONDITIONS PRECEDENT			87
	4.1	Conditions to Restatement Funding Date	87
	4.2	Conditions to Each Extension of Credit	90
Section 5. AFFIRMATIVE COVENANTS			91
	5.1	Financial Statements	91
	5.2	Certificates; Other Information	91
	5.3	Payment of Obligations	92
	5.4	Conduct of Business and Maintenance of Existence, etc.	92
	5.5	Maintenance of Property; Insurance	93
	5.6	Inspection of Property; Books and Records; Discussions	93
	5.7	Notices	93
	5.8	Environmental Laws	94
	5.9	Additional Collateral, etc.	94

 

 

	5.10	Further Assurances	96
	5.11	Ratings	96
	5.12	Use of Proceeds	96
	5.13	Beneficial Ownership Regulation	96
Section 6. NEGATIVE COVENANTS			97
	6.1	Financial Condition Covenants	97
	6.2	Limitation on Indebtedness	97
	6.3	Limitation on Liens	101
	6.4	Limitation on Fundamental Changes	103
	6.5	Limitation on Disposition of Property	103
	6.6	Limitation on Restricted Payments	105
	6.7	[Reserved.]	105
	6.8	Limitation on Investments	105
	6.9	Limitation on Optional Payments and Modifications of Debt Instruments, etc.	107
	6.10	Limitation on Transactions with Affiliates	107
	6.11	Limitation on Sales and Leasebacks	107
	6.12	Limitation on Changes in Fiscal Periods	108
	6.13	Limitation on Negative Pledge Clauses	108
	6.14	Limitation on Restrictions on Subsidiary Distributions	109
	6.15	Limitation on Lines of Business	109
Section 7. EVENTS OF DEFAULT			109
Section 8. THE AGENTS; THE ARRANGERS			112
	8.1	Appointment	112
	8.2	Delegation of Duties	113
	8.3	Exculpatory Provisions	113
	8.4	Reliance by Administrative Agent	114
	8.5	Notice of Default	115
	8.6	Non-Reliance on Agents and Other Lenders	115
	8.7	Indemnification	115
	8.8	Administrative Agent in Its Individual Capacity	116
	8.9	Successor Agents	116
	8.10	Authorization to Release Liens; Other Actions Relating to Security Documents	117
	8.11	The Arrangers; the Co-Syndication Agents; the Co-Documentation Agents	117
	8.12	Certain Proceedings	118
	8.13	Withholding Taxes	118
	8.14	Certain ERISA Matters	119

 

 

Section 9. MISCELLANEOUS			121
	9.1	Amendments and Waivers	121
	9.2	Notices	122
	9.3	No Waiver; Cumulative Remedies	125
	9.4	Survival of Representations and Warranties	125
	9.5	Payment of Expenses	126
	9.6	Successors and Assigns; Participations and Assignments	127
	9.7	Adjustments; Set-off	132
	9.8	Counterparts	133
	9.9	Severability	133
	9.10	Integration	133
	9.11	GOVERNING LAW	133
	9.12	Submission To Jurisdiction; Waivers	134
	9.13	No Fiduciary Duty	135
	9.14	Confidentiality	135
	9.15	Release of Collateral Security and Guarantee Obligations	136
	9.16	Accounting Changes	137
	9.17	[Reserved.]	137
	9.18	WAIVERS OF JURY TRIAL	137
	9.19	Lender Action	138
	9.20	USA PATRIOT Act Notice	138
	9.21	Loan Modification Offers	138
	9.22	Usury Savings Clause	140
	9.23	Effect of Restatement	140
	9.24	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	140
	9.25	Acknowledgement Regarding Any Supported QFCs	141

 

 

SCHEDULES:

 

1.1(a)	Excluded Lenders
1.1(b)	Existing Letters of Credit
3.4	Consents, Authorizations, Filings and Notices
3.9	Intellectual Property Claims
3.15	Subsidiaries
3.19(a)-1	UCC Filing Jurisdictions
3.19(a)-2	UCC Financing Statements to Remain on File
6.2(d)	Existing Indebtedness
6.3(f)	Existing Liens
6.10	Transactions with Affiliates

 

EXHIBITS:

 

A	Form of Guarantee and Collateral Agreement
B	Form of Compliance Certificate
C	Form of Restatement Funding Date Certificate
D	Form of Assignment and Assumption
E	Form of Legal Opinion of Dechert LLP
F-1	Form of Revolving Credit Note
F-2	Form of Tranche A Term Note
F-3	Form of Tranche B Term Note
G-1	Form of U.S. Tax Compliance Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
G-2	Form of U.S. Tax Compliance Certificate (For Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
G-3	Form of U.S. Tax Compliance Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
G-4	Form of U.S. Tax Compliance Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
H	Form of Solvency Certificate

 

 

AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 2, 2015 (as amended by the First Amendment to Credit Agreement, dated as of March 30, 2017, by the Second Amendment to Credit Agreement, dated as of November 20, 2017, by the Third Amendment to Credit Agreement, dated as of October 10, 2019, by the Fourth Amendment to Credit Agreement, dated as of December 16, 2020, by the Fifth Amendment to Credit Agreement, dated as of June 28, 2022, and by the Sixth Amendment to Credit Agreement, dated as of June 6, 2023, and by the Seventh Amendment to Credit Agreement, dated as of September 22, 2023 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among B&G FOODS, INC., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time party hereto as lenders (the “Lenders”) and BARCLAYS BANK PLC, as administrative agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, the “Administrative Agent”) and collateral agent for the Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “Collateral Agent”), with BARCLAYS BANK PLC (“Barclays”), DEUTSCHE BANK SECURITIES INC., RBC CAPITAL MARKETS, BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP., GOLDMAN SACHS BANK USA and JPMORGAN CHASE BANK, N.A., as joint lead arrangers and joint bookrunners with respect to the Tranche B-4 Term Loan Facility (collectively, in such capacities, the “Tranche B-4 Arrangers”), CREDIT SUISSE SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL ASSOCIATION, CITIGROUP GLOBAL MARKETS INC., CITIZENS BANK, N.A., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH and TD SECURITIES (USA) LLC, as co-managers and co-documentation agents with respect to the Tranche B-4 Term Loan Facility (collectively, in such capacities, the “Tranche B-4 Co-Documentation Agents”), BARCLAYS BANK PLC, DEUTSCHE BANK SECURITIES INC., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS, BOFA SECURITIES, INC., BMO CAPITAL MARKETS CORP., CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE LOAN FUNDING LLC, GOLDMAN SACHS BANK USA and JPMORGAN CHASE BANK, N.A., as joint lead arrangers and joint bookrunners with respect to the Fourth Amendment Facilities (collectively, in such capacities, the “Fourth Amendment Incremental Arrangers”), CITIZENS BANK, N.A., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, TD SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL ASSOCIATION, SUMITOMO MITSUI BANKING CORPORATION and COBANK, ACB (collectively, in such capacities, the “Fourth Amendment Co-Documentation Agents”), CREDIT SUISSE SECURITIES (USA) LLC (“CS Securities” and, together with its affiliates, “Credit Suisse”), Barclays, RBC CAPITAL MARKETS (“RBCCM”), BOFA SECURITIES, INC. (“BofA Securities”), DEUTSCHE BANK SECURITIES INC. (“DBSI”), CITIZENS BANK, N.A. (“Citizens”), TD SECURITIES (USA) LLC (“TD Securities”) and COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH (“Rabobank”), as joint lead arrangers and joint bookrunners with respect to the Revolving Credit Facility (collectively, in such capacities, the “Revolver Arrangers”, together with the Tranche B-4 Arrangers and the Fourth Amendment Incremental Arrangers, the “Arrangers”), Barclays, RBCCM, BofA Securities and DBSI, as co-syndication agents with respect to the Revolving Credit Facility (collectively, in such capacities, the “Co-Syndication Agents”) and Citizens, TD BANK, N.A. and Rabobank, as Co-Documentation Agents with respect to the Revolving Credit Facility (collectively, in such capacities, the “Revolver Co-Documentation Agents”, and together with the Tranche B-4 Co-Documentation Agents and the Fourth Amendment Co-Documentation Agents, the “Co-Documentation Agents”).

 

 

RECITALS:

 

WHEREAS, the Borrower, the lenders party thereto from time to time and Credit Suisse AG, as administrative agent for the lenders and collateral agent for the secured parties were parties to the Credit Agreement, dated as of June 5, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the SixthSeventh Amendment Effective Date, the “Existing Credit Agreement”);

 

WHEREAS, on the Restatement Effective Date, the Borrower requested that the Tranche B Term Loan Lenders extend credit in the form of new Tranche B Term Loans on the Restatement Funding Date, in an aggregate principal amount of $750,000,000;

 

WHEREAS, the proceeds of the new Tranche B Term Loans were used solely for the purposes set forth in Section 3.16;

 

WHEREAS, the Lenders are willing to extend credit to the Borrower on the terms and subject to the conditions set forth herein;

 

WHEREAS, on the First Amendment Effective Date, the Borrower requested that Lenders lend to the Borrower $640,109,890.11 of Tranche B-2 Term Loans (as hereinafter defined), the proceeds of which were used on the First Amendment Effective Date to refinance and repay all outstanding Tranche B Term Loans; and

 

WHEREAS, on the Second Amendment Effective Date, the Borrower requested that (a) Lenders lend to the Borrower $650,109,890.11 of Tranche B-3 Term Loans (as hereinafter defined), the proceeds of which were used on the Second Amendment Effective Date (i) to refinance and repay all outstanding Tranche B-2 Term Loans and (ii) for general corporate purposes.

 

WHEREAS, the Borrower prepaid in full the Tranche A Term Loans and the Tranche B-3 Term Loans.

 

WHEREAS, on the Third Amendment Effective Date, the Borrower requested that Lenders lend to the Borrower $450,000,000.00 of Tranche B-4 Term Loans (as hereinafter defined), the proceeds of which were used on the Third Amendment Effective Date to, together with the proceeds of New Senior Notes to be issued on or about the Third Amendment Effective Date, refinance Borrower’s existing Senior Notes due 2021 (the “Existing Senior Notes Due 2021”), pay certain outstanding Revolving Credit Loans under this Agreement and to pay certain fees and expenses in connection with the foregoing.

 

WHEREAS, on the Fourth Amendment Effective Date, (i) the Borrower requested that Lenders lend to the Borrower $300,000,000 of Incremental Term Loans, the proceeds of which were used on the Fourth Amendment Effective Date to pay certain outstanding Revolving Credit Loans under this Agreement and to pay certain fees and expenses in connection with the foregoing and (ii) the Borrower requested that Revolving Credit Lenders convert their Revolving Credit Commitments into Extended Revolving Credit Commitments on the terms set forth herein and that Lenders provide to the Borrower $100,000,000 of Incremental Revolving Commitments.

 

 

WHEREAS, on the Fourth Amendment Effective Date, (i) the Fourth Amendment Incremental Term Loans automatically and without further action by any Person became additional Tranche B-4 Term Loans (and have the same terms as the Tranche B-4 Term Loans after giving effect to the Fourth Amendment) and became part of the same class of Loans as the Tranche B-4 Term Loans and (ii) the Fourth Amendment Incremental Term Loan Lenders automatically and without further action by any Person became Tranche B-4 Term Loan Lenders, in each case for all purposes of this Agreement and the other Loan Documents.

 

WHEREAS, on the Fifth Amendment Effective Date, the Borrower requests that the Majority Facility Lenders of the Revolving Credit Facility consent to the amendments to Section 6.1(a) in accordance with, and subject to the terms set forth in, the Fifth Amendment.

 

WHEREAS, on the Sixth Amendment Effective Date, the LIBO Rate (as defined in the Existing Credit Agreement) shall be replaced as the Benchmark with Term SOFR, in accordance with, and subject to the terms set forth in, the Sixth Amendment.

 

NOW, THEREFORE, in consideration of the above premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:

 

Section 1. DEFINITIONS

 

1.1            Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

 

“Acquired Business”: substantially all of the assets comprising the Green Giant® and Le Sueur® brands business, including the “Transferred Assets” and “Assumed Liabilities” under and as defined in the Acquisition Agreement.

 

“Acquired Business Material Adverse Effect”: means any change, effect, event, occurrence or state of facts that, individually or when taken together with all other such changes, effects, events, occurrences or states of fact, has a material adverse effect (i) on the business, condition (financial or otherwise) or results of operations of the Acquired Business (including the Transferred Assets and Assumed Liabilities), (ii) on the ability of Seller to consummate the Acquisition and/or (iii) the ability of Seller to substantially perform those of its obligations under the Transition Services Agreement and the Co-Manufacturing Agreement that are necessary to avoid Purchaser being deprived of a substantial portion of the benefits of the Acquisition (taking into account the availability of alternative arrangements for the provision of such services and the potential for an adequate monetary remedy for any failure to so perform such obligations). For purposes of this Agreement, “Acquired Business Material Adverse Effect” excludes any change, effect, event, occurrence or state of facts to the extent resulting from (A) changes in Applicable Law or applicable accounting regulations or principles to the extent not materially and disproportionately affecting the Acquired Business as compared to other parties in its industries, (B) any outbreak or escalation of hostilities or war or any act of terrorism to the extent not materially and disproportionately affecting the Acquired Business as compared to other parties in its industries, (C) changes in the United States, Canadian or Mexican economies, financial markets or geopolitical conditions in general, to the extent not materially and disproportionately affecting the Acquired Business as compared to other parties in its industries, (D) changes in industries relating to the Acquired Business in general and not specifically relating to the Acquired Business (including fluctuations in prices of vegetable inputs), to the extent not materially and disproportionately affecting the Acquired Business as compared to other parties in its industries, (E) the failure, in and of itself (that is, this clause (E) will not prevent a determination that any change, effect, event, occurrence or state of facts underlying such failure, as opposed to such failure itself, has resulted in a Acquired Business Material Adverse Effect, so long as such underlying change, effect, event, occurrence of state of facts is not otherwise excluded from this definition of Acquired Business Material Adverse Effect), of the Acquired Business to meet any published or internally prepared estimates of revenues, earnings or other financial projections, performance measures or operating statistics, and (F) the execution or announcement of the Purchase Agreement (including the identity of Purchaser) or any of the Ancillary Agreements and the consummation or announcement of the transactions contemplated hereby or thereby (including the threatened or actual impact on relationships of the Acquired Business with customers, vendors, suppliers, distributors, landlords or employees). Capitalized terms used in the definition of Acquired Business Material Adverse Effect above shall have the meaning assigned to such terms in the Acquisition Agreement.

 

 

“Acquisition”: the acquisition by B&GNA and its Affiliates from the Seller and its Affiliates of the Acquired Business.

 

“Acquisition Agreement”: the Asset Purchase Agreement, dated as of September 2, 2015, between the Seller, B&GNA and the Borrower.

 

“Administrative Agent”: as defined in the preamble hereto.

 

“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

“Affiliate”: as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

 

“Agents”: the collective reference to the Administrative Agent and the Collateral Agent.

 

“Aggregate Exposure”: with respect to any Lender at any time, an amount equal to the sum of (a) the aggregate then unpaid principal amount of such Lender’s Tranche B-4 Term Loans and (b) the amount of such Lender’s Revolving Credit Commitment then in effect or, if the Revolving Credit Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.

 

“Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the sum of the Aggregate Exposures of all Lenders at such time.

 

“Agreement”: as defined in the preamble hereto.

 

 

“All-In Yield”: as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, spread adjustment, original issue discount, upfront fees or Term SOFR or Base Rate “floor”, in each case, incurred or payable ratably to all lenders of such Indebtedness; provided that (a) original issue discount and upfront fees shall be equated to interest based on assumed four-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness), (b) subject to the foregoing clause (a), “All-In Yield” shall not include prepayment premiums, arrangement, commitment, structuring, syndication, underwriting, placement, success, advisory, ticking and unused line, consent and amendment fees or any other fees payable in connection therewith (regardless of whether shared or paid, in whole or in part, with or to any or all lenders) that are not generally paid ratably to all lenders providing such Indebtedness or to one or more arrangers, bookrunners, syndication and/or documentation agents (or their affiliates) thereof, and (c) if the Other Term Loans include an interest rate floor greater than the applicable interest rate floor under the Tranche B-4 Term Loans that are SOFR Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Tranche B-4 Term Loans that are SOFR Loans shall be required, but only to the extent an increase in the interest rate floor in the Tranche B-4 Term Loans that are SOFR Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Tranche B-4 Term Loans that are SOFR Loans shall be increased to the extent of such differential between interest rate floors.

 

“Alternative Currency”: any currency which as of the time of any issuance or renewal, as applicable, of a Permitted Foreign Currency Letter of Credit is freely tradeable and convertible into Dollars and has been approved as an “Alternative Currency” for the purposes of this Agreement by the Foreign Currency L/C Issuing Lender.

 

“Amendment Agreement”: the Amendment Agreement, dated as of the Restatement Effective Date, effecting, among other things, the amendment and restatement of the Existing Credit Agreement.

 

“Anti-Corruption Laws”: shall mean all laws, rules, and regulations of any jurisdiction applicable to the Loan Parties from time to time concerning or relating to bribery or corruption, including without limitation the FCPA, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.

 

“Anti-Terrorism Laws”: shall mean any laws relating to terrorism or money laundering, including Executive Order No. 13224, the PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).

 

“Applicable Margin”: (a) with respect to the Tranche B-4 Term Loans, 1.50% in the case of Base Rate Loans, and 2.50% in the case of SOFR Loans, (b) with respect to the Revolving Credit Loans, a percentage per annum determined by reference to the Consolidated Leverage Ratio in effect from time to time as set forth below:

 

 

Consolidated Leverage Ratio		Applicable Margin for Revolving Loans that are Base Rate Loans				Applicable Margin for Revolving Loans that are SOFR Loans
> 4.00:1.00			0.75	%			1.75	%
< 4.00:1.00 > 3.50:1.00			0.50	%			1.50	%
< 3.50:1.00			0.25	%			1.25	%

 

(c) with respect to Other Term Loans, the margin to be added to the Base Rate or Term SOFR, as the case may be, as agreed upon by the Borrower and the Lender or Lenders providing the Incremental Term Loan Commitment relating thereto as provided in Section 2.32, (d) with respect to Extended Term Loans, such percentage as shall be agreed to by the Borrower and the applicable Extending Term Lenders as shown in the applicable Loan Modification Offer, and (e) with respect to any Extended Revolving Credit Commitment, such percentage as shall be agreed to by the Borrower and the applicable Revolving Credit Lenders pursuant to the applicable Revolving Extension Notice.

 

No change in the Applicable Margin shall be effective until three Business Days after the date on which the Administrative Agent shall have received the applicable financial statements and a Compliance Certificate pursuant to Section 5.2(a) calculating the Consolidated Leverage Ratio. At any time the Borrower has not submitted to the Administrative Agent the applicable information as and when required under Section 5.1, the Applicable Margin shall be determined as if the Consolidated Leverage Ratio were in excess of 4.00:1.00. Within one Business Day of receipt of the applicable information under Section 5.1, the Administrative Agent shall give each Lender telefacsimile or telephonic notice (confirmed in writing) of the Applicable Margin in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 5.1 or 5.2(a) is shown to be inaccurate (at a time when this Agreement is in effect and unpaid Obligations under this Agreement are outstanding (other than contingent obligations in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or written) has been made (and, in the case of Obligations for indemnification, no notice for indemnification has been issued by the indemnitee) at such time), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (x) the Borrower shall immediately deliver to the Administrative Agent a correct certificate required by Section 5.2(a) for such Applicable Period and (y) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period. Nothing in this paragraph shall limit the right of the Administrative Agent or any Lender under Section 2.13(c) or Section 7.

 

“Application”: an application, in such form as the applicable Issuing Lender may specify from time to time, requesting such Issuing Lender to open a Letter of Credit.

 

“Approved Fund”: with respect to any Lender (other than an Excluded Lender) that is a fund that invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

 

 

“Arrangers”: as defined in the preamble hereto.

 

“Asset Sale”: any Disposition of Property or series of related Dispositions of Property (excluding any such Disposition permitted by clause (a), (b), (c), (d) or (g) of Section 6.5) which yields gross proceeds to the Borrower or any of its Subsidiaries (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $10,000,000.

 

“Assignee”: as defined in Section 9.6(d).

 

“Assignment and Assumption”: each Assignment and Assumption, substantially in the form of Exhibit D, executed and delivered pursuant to Section 9.6.

 

“Assignor”: as defined in Section 9.6(d).

 

“Attributable Debt”: in respect of a sale and leaseback transaction, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Attributable Debt represented thereby will be determined in accordance with the definition of “Capital Lease Obligations.”

 

“Available Amount”: at any time, the sum of (a) $40,000,000600,000,000, plus (b) the cumulative amount of Excess Cash Flow of the Borrower and its Subsidiaries for the Available Amount Reference Period plus (c) the amount of Net Cash Proceeds received by the Borrower from the issuance of Capital Stock (other than Disqualified Stock and other than Capital Stock issued to any directors, officers or employees pursuant to compensation arrangements) of the Borrower (or capital contributions in respect thereof) after the Original Closing DateJuly 1, 2023, but only to the extent such Net Cash Proceeds are not otherwise applied to build the basket under clause (i) of the definition of “Permitted Acquisition” or under Section 6.8(o), plus (d) an amount equal to any return (including dividends, interest, distributions, returns of principal and profits on sale) received by the Borrower or any of the Borrower’s Subsidiaries in cash in respect of any Investments made using the Available Amount pursuant to Section 6.8(n) for the Available Amount Reference Period; provided that such amount may not exceed the original Investment made using the Available Amount pursuant to Section 6.8(n) for the Available Amount Reference Period, minus (e) the aggregate amount of Restricted Payments made pursuant to Section 6.6(b)(ii) for the Available Amount Reference Period, minus (f) the aggregate amount of Investments made using the Available Amount pursuant to Section 6.8(n) for the Available Amount Reference Period, minus (g) [reserved], minus (h) the aggregate amount of any refinancing, repayment, redemption, repurchase, retirement or other acquisition for consideration of Indebtedness made with the proceeds of the Available Amount pursuant to Section 6.9(a)(C) for the Available Amount Reference Period.

 

 

“Available Amount Reference Period”: the period commencing on the Original Closing DateJuly 1, 2023 and ending on the last day of the most recent Fiscal Quarter or fiscal year for which financial statements required to be delivered pursuant to Section 5.1(a) or 5.1(b), as applicable, and the related certificate required to be delivered pursuant to Section 5.2(a), have been received by the Administrative Agent.

 

“Available Revolving Credit Commitment”: as to any Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Credit Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding.

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.15(e).

 

“B&GNA”: B&G Foods North America, Inc., a Delaware corporation and a wholly owned Subsidiary of the Borrower.

 

“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

“Base Rate”: for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 0.50%, (b) the Prime Rate and (c) Term SOFR for a one-month tenor in effect on such date (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that if any of the rates set forth above shall be less than zero percent per annum, such rate shall be deemed to be zero percent per annum for purposes of this Agreement. Any change in such rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. For purposes of this definition, “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.15 hereof, then the Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above.

 

 

“Base Rate Loans”: Loans for which the applicable rate of interest is based upon the Base Rate.

 

“Benchmark”: initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.15(b).

 

“Benchmark Replacement”: with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

(a)            Daily Simple SOFR; or

 

(b)            the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.

 

If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than 0.00%, the Benchmark Replacement will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.

 

“Benchmark Replacement Adjustment”: with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

 

“Benchmark Replacement Date”: a date and time determined by the Administrative Agent, which date shall be no later than the earlier to occur of the following events with respect to the then-current Benchmark:

 

(a)            in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof); or

 

 

(b)            in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which all Available Tenors of such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

For the avoidance of doubt, if such Benchmark is a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Event”: the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a)            a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);

 

(b)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or

 

 

(c)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

For the avoidance of doubt, if such Benchmark is a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Unavailability Period”: the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.15 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.15.

 

“Beneficial Ownership Certification”: a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.

 

“Beneficial Ownership Regulation”: United States 31 C.F.R. § 1010.230.

 

“Benefited Lender”: as defined in Section 9.7.

 

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

“Bona Fide Lending Entity”: any bona fide (i) debt fund, (ii) investment vehicle, (iii) regulated bank entity or (iv) non-regulated lending entity that is engaged in purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.

 

“Borrower”: as defined in the preamble hereto.

 

“Borrower Materials”: as defined in Section 9.2.

 

“Borrowing Date”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.

 

 

“Business Day”: for all purposes, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided, however, that when used in connection with Term SOFR Loan, the term “Business Day” shall mean any such day that is also a U.S. Government Securities Business Day.

 

“Calculation Date”: with respect to each Permitted Foreign Currency Letter of Credit, during the period that such Permitted Foreign Currency Letter of Credit is outstanding (i) the last Business Day of each Fiscal Quarter, (ii) the date on which such Permitted Foreign Currency Letter of Credit is to be issued or renewed by the Foreign Currency L/C Issuing Lender, and (iii) the date on which any draft presented under such Permitted Foreign Currency Letter of Credit is paid by the Foreign Currency L/C Issuing Lender.

 

“Capital Expenditures”: for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) which should be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries but excluding (a) expenditures financed with (i) the Net Cash Proceeds from any Reinvestment Event or (ii) the proceeds of a Revolving Loan in the amount of Net Cash Proceeds of any Reinvestment Event that were previously used to reduce the amount of the Revolving Loans; (b) expenditures made in cash to fund the purchase price for assets acquired in Permitted Acquisitions or incurred by the Person acquired in the Permitted Acquisition prior to (but not in anticipation of) the closing of such Permitted Acquisition; and (c) expenditures financed with Indebtedness permitted under Section 6.2.

 

“Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

 

“Capital Stock”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing, but excluding any debt securities convertible into, or exchangeable for, any of the foregoing.

 

“Capital Stock Equivalents”: all securities convertible into or exchangeable for Capital Stock or any other Capital Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Capital Stock or any other Capital Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.

 

“Cash Management Agreement”: any agreement to provide cash management services, including treasury, depository (including interstate depository network services), overdraft, card services (including services related to credit cards, including purchasing and commercial cards, prepaid cards, including payroll, stored value and gift cards, merchant services processing and debit cards), electronic funds transfer, merchant process services, supply chain finance, automated clearinghouse transactions, return items, any direct debit scheme or arrangement and other cash management arrangements.

 

 

“Cash Management Bank”: any Person that, (a) at the time it enters into a Cash Management Agreement with the Borrower or any of its Subsidiaries, is a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in its capacity as a party to such Cash Management Agreement, and (b) in the case of any Cash Management Agreement entered into prior to, and existing on, the Fourth Amendment Effective Date, any Person that is, on the Fourth Amendment Effective Date, a Lender or the Administrative Agent or Affiliate of a Lender or the Administrative Agent, in its capacity as a party to such Cash Management Agreement.

 

“Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; and (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.

 

“Change in Law”: the occurrence, after the date of this Agreement, of any of the following: (a) the adoption of any law, rule or regulation or treaty after the date of this Agreement, (b) any change in any law, rule or regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Lender (or, for purposes of Section 2.17, by any lending office of such Lender or by such Lender’s or the Issuing Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; 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 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 under this clause (ii), pursuant to or in connection with Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

 

“Closing Date”: June 5, 2014.

 

“Co-Documentation Agents”: as defined in the preamble hereto.

 

“Co-Syndication Agents”: as defined in the preamble hereto.

 

“Code”: the Internal Revenue Code of 1986, as amended from time to time.

 

“Collateral”: all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.

 

“Collateral Agent”: as defined in the preamble hereto.

 

“Commitment”: with respect to any Lender, such Lender’s Tranche A Term Loan Commitment, Tranche B Term Loan Commitment, Tranche B-2 Term Loan Commitment, Tranche B-3 Term Loan Commitment, Tranche B-4 Term Loan Commitment (including the Fourth Amendment Incremental Term Loan Commitments), Revolving Credit Commitment or Incremental Term Loan Commitment.

 

“Commitment Fee Rate”: ½ of 1.00% per annum.

 

“Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“Communications”: as defined in Section 9.2.

 

“Compliance Certificate”: a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B.

 

“Confidential Information Memorandum”: the Confidential Information Memorandum of the Borrower dated May 15, 2014.

 

“Conforming Changes”: with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.19 and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion, in consultation with the Borrower, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines, in consultation with the Borrower, that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent, in consultation with the Borrower, decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

 

“Consolidated EBITDA”: of any Person for any period, Consolidated Net Income of such Person and its Subsidiaries for such period plus, without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) Consolidated Interest Expense of such Person and its Subsidiaries, amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness, (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business), (f) the amount of any non-cash compensation deduction as the result of any potential grant of Capital Stock or Capital Stock Equivalents to employees, officers, directors or consultants and (g) any other non-cash charges, and minus, to the extent included in the statement of such Consolidated Net Income for such period, the sum of (a) interest income (except to the extent deducted in determining Consolidated Interest Expense), (b) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business), and (c) any other non-cash income, all as determined on a consolidated basis.

 

“Consolidated Interest Coverage Ratio”: for any period, the ratio on a Pro Forma Basis of (a) Consolidated EBITDA of the Borrower and its Subsidiaries for such period to (b) Consolidated Interest Expense of the Borrower and its Subsidiaries for such period payable in cash.

 

“Consolidated Interest Expense”: of any Person for any period, (a) total interest expense (including that attributable to Capital Lease Obligations) of such Person and its Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed by such Person with respect to letters of credit and bankers’ acceptance financing and net costs of such Person under Hedge Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP, but excluding any deferred financing costs relating to the incurrence of any Indebtedness) minus (b) the total interest income of such Person for such period, determined in accordance with GAAP. Consolidated Interest Expense shall be deemed to include all amounts characterized as of the Closing Date as interest in accordance with GAAP as in effect on the Closing Date, whether or not such payment is characterized as interest under GAAP thereafter.

 

 

“Consolidated Leverage Ratio”: as at the last day of any period of four consecutive Fiscal Quarters, the ratio on a Pro Forma Basis of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA of the Borrower and its Subsidiaries for such period.

 

“Consolidated Net Income”: of any Person for any period, the consolidated net income (or loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that in calculating Consolidated Net Income of the Borrower and its consolidated Subsidiaries for any period, there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document, the Senior Note Indenture, the Senior Notes, the New Senior Note Indenture, the New Senior Notes, or agreements governing other Indebtedness permitted under Section 6.2 that comply with Section 6.14) or Requirement of Law applicable to such Subsidiary.

 

“Consolidated Senior Secured Debt”: all Consolidated Total Debt other than any Consolidated Total Debt that is unsecured and/or has been subordinated to the Obligations pursuant to an agreement reasonably satisfactory to the Administrative Agent.

 

“Consolidated Senior Secured Leverage Ratio”: as of the last day of any period of four consecutive Fiscal Quarters, the ratio on a Pro Forma Basis of (a) Consolidated Senior Secured Debt on such day to (b) Consolidated EBITDA of the Borrower and its Subsidiaries for such period.

 

“Consolidated Total Assets”: at any date, the total property and assets of Borrower and its Subsidiaries at such date, determined on a consolidated basis (on a pro forma basis after giving effect to any Permitted Acquisitions or any Investments or dispositions permitted hereunder or by the other Loan Documents).

 

“Consolidated Total Debt”: at any date, the aggregate principal amount of all Funded Debt of the Borrower and its Subsidiaries at such date, determined on a consolidated basis less the aggregate amount of cash and Cash Equivalents of the Borrower and its Subsidiaries at such date that is not Restricted Cash.

 

“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

 

“Control Investment Affiliate”: as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

 

 

“Covered Entity” any of the following:

 

(a)

a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(b)

a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(c)

a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Credit Agreement Refinancing Indebtedness”: (a) Permitted Second Priority Refinancing Debt or (b) Permitted Unsecured Refinancing Debt, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans (including any successive Credit Agreement Refinancing Indebtedness) (“Refinanced Debt”); provided that (i) such extending, renewing or refinancing Indebtedness is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection with such Refinanced Debt, (ii) such Indebtedness has a later maturity and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt and (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.

 

“Daily Simple SOFR”: for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website, and (b) 0.00%. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.

 

“Debtor Relief Laws”: the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

 

 

“Default”: 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 constitute an Event of Default.

 

“Default Excess”: as at the date of computation thereof with respect to any Defaulting Lender, the sum of the amounts of defaulted Revolving Credit Loans and defaulted payments of such Lender at such date.

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“Defaulting Lender”: subject to Section 2.31(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 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 Issuing 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) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or the Issuing Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) 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, (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, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock 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 clauses (a) through (d) above (which determination, for the avoidance of doubt, shall not be required for a Lender to be a Defaulting Lender) shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.31(b)) upon delivery of written notice of such determination to the Borrower, the Issuing Lender and each Lender.

 

 

“Derivatives Counterparty”: as defined in Section 6.6.

 

“Disposition”: with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose” and “Disposed of” shall have correlative meanings.

 

“Disqualified Stock”: any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of such Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of such Capital Stock, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of such Capital Stock have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption is permitted under Section 6.6.

 

“Dollar Equivalent”: at any time, as to any amount denominated in an Alternative Currency, the equivalent amount in Dollars as determined on the basis of the Exchange Rate for the purchase of Dollars with such Alternative Currency as of the most recent Calculation Date.

 

“Dollars” and “$”: lawful currency of the United States of America.

 

“Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States of America.

 

“Earliest Term Loan Maturity Date” the Tranche B-4 Term Loan Maturity Date or, if applicable, the earliest scheduled maturity date of any other tranche of Term Loans hereunder.

 

“EEA Financial Institution” (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;

 

“EEA Member Country” any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority” any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

 

“Environmental Laws”: any and all laws, rules, orders, regulations, statutes, ordinances, enforceable guidelines, codes, decrees, or other legally enforceable requirements (including, without limitation, common law) of any international authority, foreign government, the United States, or any state, local, municipal or other governmental authority, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or of human health, or employee health and safety, as has been, is now, or may at any time hereafter be, in effect.

 

“Environmental Permits”: any and all permits, licenses, approvals, registrations, notifications, exemptions and other authorizations required under any Environmental Law.

 

“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor statute.

 

“ERISA Affiliate”: any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Sections 414(b), 414(c), 414(m) or 414(o) of the Code, or solely for purposes of Section 302 or 303 of ERISA or Section 412 or 430 of the Code, is treated as a single employer under Section 414 of the Code.

 

“ERISA Event”: (a) any Reportable Event, (b) the failure of any Plan to meet the minimum funding standard of Section 412 or 430 of the Code or Section 302 or 303 of ERISA, in each case, whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan, (e) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan under Sections 4041 and 4042 of ERISA, respectively, (f) the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 436(f) of the Code, (g) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent or in Reorganization, or a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA, (h) the occurrence of a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA) with respect to which the Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code), a “party in interest” (within the meaning of Section 3(14) of ERISA) or with respect to which the Borrower or any such Subsidiary could otherwise be liable or (i) any Foreign Benefit Event.

 

“EU Bail-In Legislation Schedule” the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

“Event of Default”: any of the events specified in Section 7, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

 

 

 

“Excess Cash Flow”: for any Fiscal Quarter or fiscal year of the Borrower (a) Consolidated EBITDA for such period (provided that, for the purpose of this definition, Consolidated EBITDA shall not be calculated on a Pro Forma Basis), minus (b) the sum, without duplication, of (i) the amount of any Taxes imposed by any Governmental Authority payable in cash by the Borrower and its Subsidiaries with respect to such period (including payment of withholding taxes on behalf of employees in connection with equity compensation awards of Capital Stock or Capital Stock Equivalents), (ii) Consolidated Interest Expense for such period paid in cash, (iii) Capital Expenditures made in cash during such period and (iv) mandatory amortization payments pursuant to Sections 2.3(a) and 2.3(c) made in cash by the Borrower and its Subsidiaries during such period.

 

“Exchange Act”: the Securities Exchange Act of 1934, as amended.

 

“Exchange Rate”: on any day, with respect to any Alternative Currency, the spot rate at which Dollars are offered on such day by the Foreign Currency L/C Issuing Lender in New York, New York (or such other location selected by the Foreign Currency L/C Issuing Lender) for such Alternative Currency.

 

“Excluded Issuance”: an issuance and sale of Capital Stock (other than Disqualified Stock) of the Borrower to any of its equity holders.

 

“Excluded Lender”: (a) each person set forth on Schedule 1.1(a) and (b) any other person and their respective Controlled Investment Affiliates named by the Borrower, in good faith, which is engaged in the same or similar line of business as the Borrower or any of its Subsidiaries and in each case designated by name by the Borrower as such from time to time after the Closing Date in a certificate duly executed by a Responsible Officer of Borrower (in each case other than the Arrangers and their respective affiliates and any Bona Fide Lending Entity). Any supplement to such list of Excluded Lenders pursuant to clause (b) above will become effective two (2) Business Days after delivery to the Administrative Agent and shall be posted to the Lenders as a supplement to Schedule 1.1(a). In no event shall a supplement apply retroactively to disqualify any Lender as of the date of such supplement who has previously acquired an interest in the Loans or Commitments, but upon the effectiveness of such designation, any such Lender may not acquire any additional Loans or Commitments or participations in Loans or Commitments.

 

“Excluded Swap Obligation”: with respect to any Guarantor, (x) as it relates to all or a portion of the Guarantee of such Guarantor, any Swap Obligation if, and to the extent that, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Swap Obligation or (y) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect thereof)  is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

 

 

“Excluded Taxes”: with respect to the Administrative Agent, any Lender, the Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction 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 Administrative Agent, any Lender or the Issuing Lender, as applicable, and the jurisdiction imposing such tax (other than a connection arising by reason of such Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced its rights under, or sold or assigned an interest in this Agreement or any other Loan Document), (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender as a result of such Lender’s failure to comply with Section 2.18(e)(ii) hereof, (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.22), any U.S. federal withholding tax that is imposed on amounts payable to such Foreign Lender under laws in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.18(e), except to the extent that 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 2.18(a) and (e) any U.S. federal withholding Taxes imposed under FATCA.

 

“Existing Issuing Lender”: Bank of America, as issuer of the Existing Letters of Credit.

 

“Existing Letters of Credit”: the letters of credit described in Schedule II of the Fourth Amendment.

 

“Existing Senior Notes Due 2021”: as defined in the Recitals.

 

“Existing Tranche”: as defined in Section 9.21(a).

 

“Extended Revolving Credit Commitment”: as defined in Section 9.21(b).

 

“Extended Term Loans”: as defined in Section 9.21(a).

 

“Extending Term Lender”: as defined in Section 9.21(a).

 

“Extension”: as defined in Section 9.21(b).

 

 

“Extension Election”: as defined in Section 9.21(a).

 

“Facility”: each of (a) the Tranche A Term Loan Commitments and the Tranche A Term Loans made thereunder (the “Tranche A Term Loan Facility”), (b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made thereunder (the “Tranche B Term Loan Facility”), (c) the Tranche B-2 Term Loan Commitments and the Tranche B-2 Term Loans made thereunder (the “Tranche B-2 Term Loan Facility”), (d) the Tranche B-3 Term Loan Commitments and the Tranche B-3 Term Loans made thereunder (the “Tranche B-3 Term Loan Facility”), (e) the Tranche B-4 Term Loan Commitments and the Tranche B-4 Term Loans made thereunder (the “Tranche B-4 Term Loan Facility”), (f) the Revolving Credit Commitments and the extensions of credit made thereunder (the “Revolving Credit Facility”) and (g) the extensions of credit made under any other separate tranche of Loans or Commitments hereunder consisting of (i) Extended Term Loans converted from existing Term Loans, (ii) any new tranche of Revolving Credit Commitments established as a result of Revolving Extension Notices or (iii) Incremental Term Loans as provided in Section 2.32.

 

“Fair Market Value”: the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the board of directors of the Borrower.

 

“FATCA”: Sections 1471 through 1474 of the Code (as of the Closing Date), any regulations or other official interpretations thereof and shall also include any amended or successor versions of such legislation that are substantively comparable and that contain requirements to avoid withholding which are not materially more onerous than the requirements to avoid withholding under the current legislation (and any future regulations and official interpretations), any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement between a non-U.S. jurisdiction and the United States of America with respect to the foregoing and any law, regulation or practice adopted pursuant to any such intergovernmental agreement.

 

“FCPA”: United States Foreign Corrupt Practices Act of 1977, as amended.

 

“Federal Funds Effective Rate”: for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

 

“Federal Reserve Bank of New York’s Website”: the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

 

“Fifth Amendment”: that certain Fifth Amendment to Credit Agreement, dated as of June 28, 2022, by and among the Borrower, the Subsidiary Guarantors, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

 

“Fifth Amendment Effective Date”: as defined in the Fifth Amendment.

 

 

“First Amendment”: that certain First Amendment to Credit Agreement, dated as of March 30, 2017, by and among the Borrower, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

 

“First Amendment Effective Date”: as defined in the First Amendment.

 

“Fiscal Quarter”: a fiscal quarter of any fiscal year of the Borrower.

 

“Foreign Benefit Event”: with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, or (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments.

 

“Foreign Currency L/C Issuing Lender”: with respect to any Permitted Foreign Currency Letters of Credit, the issuer thereof that, at the time such Permitted Foreign Currency Letter of Credit was issued, was the Issuing Lender hereunder.

 

“Foreign Lender”: any Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.

 

“Foreign Pension Plan”: any employee benefit plan that would be a Plan but for the fact that such employee benefit plan is maintained outside of the United States (but excluding any plan, program or arrangement maintained or mandated by a Governmental Authority).

 

“Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic Subsidiary.

 

“Foreign Subsidiary Holding Company”: any Domestic Subsidiary of the Borrower that wholly-owns the stock of one or more Foreign Subsidiaries and which is disregarded for United States federal income tax purposes as an entity that is separate from its owner but only so long as such Subsidiary has no assets other than the stock of one or more Foreign Subsidiaries and de minimis other assets.

 

“Fourth Amendment”: that certain Fourth Amendment to Credit Agreement, dated as of December 16, 2020, by and among the Borrower, the Subsidiary Guarantors, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

 

“Fourth Amendment Effective Date”: as defined in the Fourth Amendment.

 

“Fourth Amendment Facilities”: the Fourth Amendment Incremental Term Loan Facility and the Fourth Amendment Revolving Credit Facility, each as defined in the Fourth Amendment.

 

“Fourth Amendment Incremental Term Loan Commitment”: as defined in the Fourth Amendment.

 

 

“Fourth Amendment Incremental Term Loan Lender”: any Lender with a Fourth Amendment Incremental Term Loan Commitment or an outstanding Fourth Amendment Incremental Term Loan.

 

“Fourth Amendment Incremental Term Loans”: the term loans made by the Fourth Amendment Incremental Term Loan Lender to the Borrower pursuant to the Fourth Amendment.

 

“Fronting Exposure”: at any time there is a Defaulting Lender, with respect to the Issuing Lender, such Defaulting Lender’s Revolving Credit Percentage of the L/C Obligations with respect to Letters of Credit issued by the Issuing Lender 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.

 

“Funded Debt”: as to any Person, all Indebtedness of such Person of the types described in clauses (a) through (e) of the definition of “Indebtedness” in this Section.

 

“Funding Office”: the office specified from time to time by the Administrative Agent as its funding office by notice to the Borrower and the Lenders.

 

“GAAP”: generally accepted accounting principles in the United States of America as in effect from time to time, except that for purposes of Section 6.1, GAAP shall be determined on the basis of such principles in effect on the Closing Date and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 3.1(b).

 

“Governmental Authority”: the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

“Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement, dated as of June 5, 2014, by and among the Borrower and the other Grantors (as defined therein) in favor of the Collateral Agent, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit), if to induce the creation of such obligation of such other Person the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

 

 

“Hedge Agreements”: with respect to any Person or its Subsidiaries, all interest rate or currency swaps, caps or collar agreements or similar arrangements entered into by such Person or its Subsidiaries providing for protection against fluctuations in interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.

 

“Hedging Obligations”: with respect to any specified Person, the obligations of such Person under Hedge Agreements.

 

“Highest Lawful Rate”: the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.

 

“Incremental Assumption Agreement”: the Fourth Amendment and any other Incremental Assumption Agreement among, and in form and substance reasonably satisfactory to, the Borrower, the Administrative Agent and one or more Incremental Term Lenders or Incremental Revolving Lenders, as applicable.

 

“Incremental Revolving Commitment”: the Fourth Amendment Incremental Revolving Credit Commitments and any other commitment of any Lender, established pursuant to Section 2.32, to make Incremental Revolving Loans to the Borrower.

 

“Incremental Revolving Lender”: a Lender with an Incremental Revolving Commitment or an outstanding Incremental Revolving Loan.

 

“Incremental Revolving Loans”: revolving loans made by one or more Lenders to the Borrower pursuant to Section 2.4(b).

 

“Incremental Term Borrowing”: a Borrowing comprised of Incremental Term Loans.

 

 

“Incremental Term Lender”: a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.

 

“Incremental Term Loan Commitment”: the Fourth Amendment Incremental Term Loan Commitments and any other commitment of any Lender, established pursuant to Section 2.32, to make Incremental Term Loans to the Borrower.

 

“Incremental Term Loan Maturity Date”: the final maturity date of any Incremental Term Loan, as set forth in the applicable Incremental Assumption Agreement.

 

“Incremental Term Loan Repayment Dates”: the dates scheduled for the repayment of principal of any Incremental Term Loan, as set forth in the applicable Incremental Assumption Agreement.

 

“Incremental Term Loans”: the Fourth Amendment Incremental Term Loans and any other term loans made by one or more Lenders to the Borrower pursuant to Section 2.1(d). Incremental Term Loans may be made in the form of additional Tranche A Term Loans, additional Tranche B-2 Term Loans, additional Tranche B-3 Term Loans, additional Tranche B-4 Term Loans or, to the extent permitted by Section 2.32 and provided for in the relevant Incremental Assumption Agreement, Other Term Loans.

 

“Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of Property or services (other than an accrued expense, trade payables or any similar obligation to trade creditors incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under acceptance, letter of credit or similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person (other than pursuant to clause (k) of this definition), (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above; (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation (provided that, if such Person has not assumed or become liable for the payment of such obligation, the amount of Indebtedness constituted by such obligation shall be deemed to be the lesser of (i) the stated amount thereof or (ii) the Fair Market Value of the Property encumbered by such Lien), (j) for the purposes of Section 7(e) only, all Hedging Obligations of such Person and (k) the liquidation value of any preferred Capital Stock of such Person or its Subsidiaries held by any Person other than such Person and its Wholly Owned Subsidiaries if such preferred Capital Stock is mandatorily redeemable prior to the date which is 91 days after the final payment is due on the Tranche B-4 Term Loans.

 

 

“Indemnified Liabilities”: as defined in Section 9.5.

 

“Indemnified Taxes”: Taxes other than Excluded Taxes.

 

“Indemnitee”: as defined in Section 9.5.

 

“Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

 

“Insolvent”: pertaining to a condition of Insolvency.

 

“Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

 

“Interest Payment Date”: (a) as to any Base Rate Loan, the last Business Day of each March, June, September and December to occur while such Base Rate Loan is outstanding and the final maturity date of such Base Rate Loan, (b) as to any SOFR Loan having an Interest Period of three months or less, the last Business Day of such Interest Period, (c) as to any SOFR Loan having an Interest Period longer than three months, each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and the last Business Day of such Interest Period and (d) as to any SOFR Loan or any Base Rate Loan that is a Term Loan, the date of any repayment or prepayment made in respect thereof.

 

“Interest Period”: as to any SOFR Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such SOFR Loan and ending one, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such SOFR Loan and ending one, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:

 

if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

 

any Interest Period that would otherwise extend beyond the Revolving Credit Termination Date or beyond the date final payment is due on the Tranche B-4 Term Loans, any other Term Loans, as the case may be, shall end on the Revolving Credit Termination Date, the Tranche B-4 Term Loan Maturity Date or the Latest Maturity Date, as applicable; and

 

 

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 a calendar month; and

 

the Borrower shall select Interest Periods so as not to require a payment or prepayment of any SOFR Loan during an Interest Period for such SOFR Loan.

 

“Investments”: as defined in Section 6.8.

 

“Issuing Lender”: the Existing Issuing Lender and any other Lender selected by the Borrower, with the consent of such Lender and the Administrative Agent, to act as Issuing Lender, in its capacity as issuer of any Letter of Credit.

 

“L/C Commitment”: $50,000,000.

 

“L/C Disbursement”: a payment or disbursement made by the Issuing Lender pursuant to a Letter of Credit issued by the Issuing Lender.

 

“L/C Fee Payment Date”: the last Business Day of each March, June, September and December and the last day of the Revolving Credit Commitment Period.

 

“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of L/C Disbursements that have not then been reimbursed pursuant to Section 2.27. The L/C Obligations of any Revolving Credit Lender at any time shall equal its Revolving Credit Percentage of the aggregate L/C Obligations at such time.

 

“L/C Participants”: the collective reference to all the Revolving Credit Lenders other than the relevant Issuing Lender.

 

“Latest Maturity Date”: at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Term Loan, Other Term Loan, Extended Term Loan or Extended Revolving Credit Commitment, in each case as extended in accordance with this Agreement from time to time.

 

“Lenders”: each Revolving Credit Lender, each Tranche A Term Loan Lender, each Tranche B Term Loan Lender, each Tranche B-2 Term Loan Lender, each Tranche B-3 Term Loan Lender, each Tranche B-4 Term Loan Lender (including each Fourth Amendment Incremental Term Loan Lender) and each other bank, financial institution or other entity from time to time party to this Agreement as a Lender.

 

“Letters of Credit”: as defined in Section 2.23(a).

 

“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

 

 

“Loan”: any loan made by any Lender pursuant to this Agreement.

 

“Loan Documents”: this Agreement, the Applications, the Security Documents, the Amendment Agreement, each Incremental Assumption Agreement, the Notes, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment and all other documents, instruments or agreements designated therein as “Loan Documents” and executed and delivered by a Loan Party for the benefit of any Agent, the Issuing Lender or any Lender in connection herewith on or after the Closing Date, in each case, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“Loan Modification Offer”: as defined in Section 9.21(a).

 

“Loan Parties”: the Borrower and each Subsidiary Guarantor.

 

“Majority Facility Lenders”: (a) with respect to the Tranche A Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche A Term Loans outstanding, (b) with respect to the Tranche B Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B Term Loans outstanding , (c) with respect to the Tranche B-2 Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B-2 Term Loans outstanding, (d) with respect to the Tranche B-3 Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B-3 Term Loans outstanding, (e) with respect to the Tranche B-4 Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B-4 Term Loans outstanding, and (f) with respect to the Revolving Credit Facility, prior to any termination of the Revolving Credit Commitments, the holders of more than 50% of the Total Revolving Credit Commitments and thereafter, of the Total Revolving Extensions of Credit.

 

“Material Adverse Effect”: a material adverse effect on (i) the business, assets, property or financial condition of the Borrower and its Subsidiaries taken as a whole or (ii) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.

 

“Material Environmental Amount”: an amount or amounts payable by the Borrower and/or any of its Subsidiaries, in the aggregate in excess of $5,000,000 in respect of any one occurrence, for: costs to comply with any Environmental Law; costs of any investigation, and any remediation, of any Material of Environmental Concern; and compensatory damages (including, without limitation damages to natural resources), punitive damages, fines, and penalties pursuant to any Environmental Law.

 

“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances or forces of any kind, whether or not any such substance or force is defined as hazardous or toxic under any Environmental Law, that is regulated pursuant to or could reasonably be expected to give rise to liability under any Environmental Law.

 

 

“Minimum Collateral Amount”: at any time, (a) with respect to cash collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the Issuing Lender with respect to Letters of Credit issued by the Issuing Lender and outstanding at such time and (b) for purposes of Section 2.31, an amount reasonably determined by the Administrative Agent and the Issuing Lender; provided that such amount does not exceed the amount set forth in clause (a) hereof.

 

“Moody’s”: Moody’s Investors Service, Inc.

 

“Multiemployer Plan”: a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“Net Cash Proceeds”: (a)  in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Asset Sale or Recovery Event, net of reasonable and customary attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other reasonable and customary fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof, and (b) in connection with any issuance or sale of debt or equity securities or instruments or the incurrence of loans, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

 

“New Senior Notes”: the senior notes of the Borrower issued from time to time pursuant to the New Senior Note Indenture.

 

“New Senior NotesNote Indenture”: the Base Indenture, dated as of June 4, 2013, entered into by the Borrower and The Bank of New York Mellon Trust Company, N.A., as trustee, the Supplemental Indenture entered into on April 3, 2017 by the Borrower, the “Guarantors” under and as defined therein and The Bank of New York Mellon Trust Company N.A., as trustee, and the Tenth Supplemental Indenture, dated as of September 26, 2019, by the Borrower, the “Guarantors” under and as defined therein and The Bank of New York Mellon Trust Company N.A., as trustee, in each case in connection with the issuance of the New Senior Notes, together with all instruments and other agreements entered into by the Borrower or such Subsidiaries in connection therewith, as the same may be amended, supplemented or otherwise modified from time to time in accordance with Section 6.9.

 

“Non-Defaulting Lender”: as defined in Section 2.31(a)(ii).

 

“Notes”: the collective reference to each promissory note, if any, evidencing Loans.

 

 

“Obligations”: the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans, the Reimbursement Obligations, Specified Cash Management Agreements, payments for early termination of Specified Hedge Agreements and all other obligations and liabilities of the Loan Parties to any Agent, any Arranger, the Issuing Lender, any Co-Syndication Agent, the Co-Documentation Agents, any Lender, any Qualified Counterparty, any Cash Management Bank or any Foreign Currency L/C Issuing Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Cash Management Agreement, any Specified Hedge Agreement, any Permitted Foreign Currency Letters of Credit or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel to the Agents, the Arrangers, the Issuing Lender, the Co-Syndication Agents, the Co-Documentation Agents and the Lenders that are required to be paid by the Borrower pursuant hereto) or otherwise; provided that (i) obligations of the Borrower or any Subsidiary under any Specified Cash Management Agreement, Specified Hedge Agreement or in respect of any Permitted Foreign Currency Letter of Credit shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed, (ii) any release of Collateral or Subsidiary Guarantors or any waiver or modification of any other provision in the Loan Documents regarding the Collateral effected in accordance with Section 9.15 shall not require the consent of holders of obligations under Specified Cash Management Agreement, Specified Hedge Agreements or in respect of Permitted Foreign Currency Letters of Credit and (iii) the “Obligations” shall exclude any Excluded Swap Obligations.

 

“OFAC”: United States Treasury Department’s Office of Foreign Assets Control.

 

“OID”: as defined in Section 2.32(b).

 

“Original Closing Date”: November 30, 2011.

 

“Other Taxes”: any and 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 from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, excluding any such Taxes resulting from an assignment by any Lender pursuant to Section 9.6 hereof.

 

“Other Term Loans”: as defined in Section 2.32(a).

 

“Pari Passu Intercreditor Agreement”: as defined in Section 6.2(p).

 

“Participant”: as defined in Section 9.6(b).

 

“Participant Register”: as defined in Section 9.6(b).

 

 

“Payment Office”: the office specified from time to time by the Administrative Agent as its payment office by notice to the Borrower and the Lenders.

 

“PBGC”: the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor statute.

 

“Permitted Acquisition”: any acquisition by the Borrower or any of its Subsidiaries of all of the Capital Stock of, or all or substantially all of the assets constituting a business unit of, any other Person so long as, with respect to any such acquisition having aggregate consideration in excess of $100,000,000, the following conditions are satisfied:

 

(a)            either (i) no Default or Event of Default shall have occurred and be continuing or would result from such acquisition or (ii) if the Lenders providing an Incremental Term Loan or Incremental Revolving Loan to finance a Permitted Acquisition have agreed to a “funds certain” provision, then no Default or Event of Default shall have occurred and be continuing under Section 7(a) or (f);

 

(b)            the Borrower shall be in compliance with the financial covenants set forth in Section 6.1, after giving pro forma effect to such acquisition as if it had occurred on the first day of the respective periods measured by such covenants;

 

(c)            the target of such acquisition shall be in the same or a similar line of business as the Borrower and its Subsidiaries;

 

(d)            [Reserved];

 

(e)            the Borrower shall have performed reasonable and customary due diligence with respect to such acquisition and the target thereof, including with respect to environmental matters;

 

(f)            the Borrower and/or the applicable Subsidiary shall have obtained all material third party consents and approvals required in connection with such acquisition;

 

(g)            [Reserved];

 

(h)            the Borrower shall have reasonably determined that it has adequate liquidity available for working capital; and

 

(i)             with respect to any such acquisition having aggregate consideration in excess of $250,000,000, substantially all of the assets so acquired are located in the United States, Canada, Mexico or any member state of the European Union or if such acquisition is structured as a purchase of stock, the Person so acquired is organized under the laws of a state of the United States, Canada, Mexico and member states of the European Union and substantially all of the assets owned by such Person are located in the United States, Canada, Mexico or any member state of the European Union; provided that (i) the Borrower may acquire the stock of a Person organized under the laws of a state of the United States whose assets are located, in whole or in part, in Puerto Rico, Canada, Mexico or any member state of the European Union, if such Person becomes a Subsidiary Guarantor and grants a security interest in its assets as contemplated by Section 5.9 and (ii) the Borrower may acquire the stock of any Person organized under the laws of any jurisdiction other than the United States, Canada, Mexico or any member state of the European Union, so long as the aggregate amount of Investments made pursuant to this clause (ii), together with Investments made as permitted by Section 6.8(o), does not exceed an amount equal to the sum of (A) $200,000,000 plus (B) the amount of proceeds received as consideration for such Permitted Acquisition from Excluded Issuances after the Closing Date less the proceeds of any such Excluded Issuances that have been used after the Closing Date to make Investments pursuant to Section 6.8(o) or to finance any other Permitted Acquisition.

 

 

“Permitted Foreign Currency Letter of Credit”: any letter of credit denominated in a currency other than Dollars issued to the Borrower by the Foreign Currency L/C Issuing Lender. For the avoidance of doubt, no Permitted Foreign Currency Letter of Credit shall be a Letter of Credit for any purpose under the Loan Documents.

 

“Permitted Second Priority Refinancing Debt”: secured Indebtedness incurred by the Borrower in the form of one or more series of second lien secured notes or second lien secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second lien, subordinated basis to the Obligations and is not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, (iii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (iv) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent; provided that such differences are not more favorable to the investors in such secured Indebtedness), (v) such Indebtedness is not also incurred by or guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors and is not incurred by or guaranteed by any other Person, (vi) an agent or representative acting on behalf of the holders of such Indebtedness (a “Second Lien Agent”) shall have become party to an intercreditor agreement in form and substance satisfactory to the Administrative Agent (the “Second Lien Intercreditor Agreement”); provided that, if such Indebtedness is the initial Permitted Second Priority Refinancing Debt incurred by the Borrower, then the Borrower, the Subsidiary Guarantors, the Administrative Agent and the Second Lien Agent for such Indebtedness shall have executed and delivered the Second Lien Intercreditor Agreement, (vii) the other terms and conditions of such secured Indebtedness are on the whole substantially identical to, or less favorable to the investors providing such secured Indebtedness, than those applicable to the Refinanced Debt (except for (x) pricing, fees, rate floors and prepayment or redemption premiums, which shall reflect market terms and conditions at the time of incurrence or issuance, (y) covenants or other provisions applicable only to periods after the date that is 91 days after the Latest Maturity Date that is in effect on the date such Indebtedness is issued, incurred or obtained and (z) differences that reflect the nature of such secured debt as fixed or floating rate securities), and (viii) a Responsible Officer shall have certified compliance with the foregoing requirements and that the incurrence of such Indebtedness complies with Section 6.2.

 

“Permitted Unsecured Refinancing Debt”: unsecured Indebtedness incurred by the Borrower in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, (ii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (iii) such Indebtedness is not also incurred by or guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors and is not incurred by or guaranteed by any other Person, (iv) such Indebtedness is not secured by any Lien on any property or assets of the Borrower or any of its Subsidiaries, (v) the terms of such Indebtedness, taken as a whole, are not materially less favorable to the Borrower and the Subsidiary Guarantors than the terms of the Refinanced Debt and (vi) a Responsible Officer shall have certified compliance with the foregoing requirements and that the incurrence of such Indebtedness complies with Section 6.2.

 

 

“Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

 

“Plan”: any “employee pension benefit plan” as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 or 303 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“Platform”: as defined in Section 9.2.

 

“Principals”: the members of management of the Borrower or any of its Subsidiaries as of the Closing Date.

 

“Pro Forma Basis”: for purposes of calculating the financial covenants set forth in Section 6.1 or any other financial ratio or test, such calculation shall be made in accordance with Section 1.3.

 

“Pro Forma Financial Statements”: as defined in Section 3.1(a).

 

“Projections”: as defined in Section 5.2(b).

 

“Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.

 

“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“Public Lender”: as defined in Section 9.2.

 

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

 

“Qualified Counterparty”: with respect to any Specified Hedge Agreement, any counterparty thereto that, at the time such Specified Hedge Agreement was entered into, was a Lender or an Affiliate of a Lender.

 

“Reaffirmation Agreement”: the Reaffirmation Agreement, dated as of the Third Amendment Effective Date, by and among, the Borrower and the other Grantors (as defined therein) in favor of the Collateral Agent, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“Recovery Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or any of its Subsidiaries.

 

“Refinancing Arranger”: Barclays Bank PLC.

 

“Register”: as defined in Section 9.6(e).

 

“Regulation U”: Regulation U of the Board as in effect from time to time.

 

“Reimbursement Obligation”: the obligation of the Borrower to reimburse the relevant Issuing Lender pursuant to Section 2.27 for amounts drawn under Letters of Credit.

 

“Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or any of its Subsidiaries in connection therewith that are not applied to prepay the Loans pursuant to Section 2.10(b) as a result of the delivery of a Reinvestment Notice.

 

“Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.

 

“Reinvestment Notice”: a written notice executed by a Responsible Officer stating that no Default or Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Wholly Owned Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful in its or such Subsidiary’s business.

 

“Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire assets useful in the Borrower’s business.

 

“Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier of (a) the date occurring 360 days after such Reinvestment Event (provided that if the Borrower enters into a legally binding commitment to reinvest the applicable Reinvestment Deferred Amount prior to such date, the Reinvestment Prepayment Date shall be extended for 180 days) and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire assets useful in the Borrower’s business with all or any portion of the relevant Reinvestment Deferred Amount.

 

 

“Related Parties”: (a) with respect to any Agent, any Arranger, any Co-Syndication Agent, any Co-Documentation Agent, the Issuing Lender or any Lender, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents, administrators, managers, partners, advisors, controlling persons, representatives and members of such Person and of such Person’s Affiliates, and (b) in all other cases, any (i) controlling stockholder, 66⅔% (or more) owned Subsidiary, or immediate family member (in the case of an individual) of any Principal, or (ii) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or Persons beneficially holding 66⅔% or more controlling interest of which consist of any one or more Principals and/or such other Persons referred to in the immediately preceding clause (i).

 

“Relevant Governmental Body” the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

 

“Reorganization”: with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

 

“Reportable Event”: any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived).

 

“Repricing Transaction”: the prepayment or refinancing of all or a portion of the Tranche B-4 Term Loans with the incurrence by the Borrower or any of its Subsidiaries of any senior bank loan financing (other than in connection with a Specified Change in Control or a Transformative Acquisition) having an All-In Yield (as determined by the Administrative Agent consistent with generally accepted financial practice) that is less than the All-In Yield (as determined by the Administrative Agent on the same basis) of such Tranche B-4 Term Loans, including without limitation, as may be effected through any amendment to this Agreement, including any amendment to this Agreement relating to the All-In Yield of, such Tranche B-4 Term Loans (including any mandatory assignment in connection therewith).

 

“Required Lenders”: at any time, Lenders having Loans, L/C Obligations and unused Revolving Credit Commitments and Term Loan Commitments the holders of more than 50% of the sum of all Loans outstanding, L/C Obligations, and unused Revolving Credit Commitments and Term Loan Commitments at such time; provided that the Revolving Credit Loans, L/C Obligations and unused Revolving Credit Commitments and Term Loan Commitments of any Defaulting Lender or Excluded Lender shall be disregarded in the determination of the Required Lenders at any time.

 

“Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

 

 

“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

“Responsible Officer”: the chief executive officer, president or chief financial officer of the Borrower, but in any event, with respect to financial matters, the chief financial officer of the Borrower.

 

“Restatement Effective Date”: the date on which each of the conditions precedent in Section 5 of the Amendment Agreement have been satisfied, but in any event, no later than October 2, 2015.

 

“Restatement Funding Date”: the date on which each of the conditions precedent in Section 6 of the Amendment Agreement were satisfied and the funding of the Tranche B Term Loans, but in any event, no later than December 31, 2015; provided that such date will be extended to February 29, 2016 to the extent so extended pursuant to the terms of Section 12.05(b) of the Acquisition Agreement as in effect on the Restatement Funding Date.

 

“Restricted Cash”: cash and Cash Equivalents held by a Subsidiary that is contractually restricted from being distributed to the Borrower; provided, that cash or Cash Equivalents maintained by any Foreign Subsidiary that is subject to minority shareholder approval before being distributed to the Borrower shall not deemed to be “Restricted Cash” as a result of such restriction.

 

“Restricted Payments”: as defined in Section 6.6.

 

“Revolving Credit Commitment”: as to any Lender, the obligation of such Lender to make Revolving Credit Loans and participate in Letters of Credit, in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Fourth Amendment Revolving Credit Commitment” opposite such Lender’s name on Schedule I to the Fourth Amendment on the Fourth Amendment Effective Date, or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of Total Revolving Credit Commitments as of the Fourth Amendment Effective Date is $800,000,000.

 

“Revolving Credit Commitment Period”: the period from and including the Closing Date to the Revolving Credit Termination Date.

 

“Revolving Credit Facility”: as defined in the definition of “Facility” in this Section 1.1.

 

“Revolving Credit Lender”: each Lender that has a Revolving Credit Commitment or that is the holder of Revolving Credit Loans.

 

“Revolving Credit Loans”: the revolving loans made by the Lenders to the Borrower pursuant to Section 2.4(a).

 

“Revolving Credit Percentage”: as to any Lender at any time, the percentage which such Lender’s Revolving Credit Commitment then constitutes of the Total Revolving Credit Commitments (or, at any time after the Revolving Credit Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Credit Loans then outstanding constitutes of the aggregate principal amount of the Revolving Credit Loans then outstanding).

 

 

“Revolving Credit Termination Date”: the earlier of (a) December 16, 2025, (b) the date that is ninety (90) days prior to the Earliest Term Loan Maturity Date, (c) the date that is ninety (90) days prior to the earliest then applicable maturity date of the Senior Notes, and (d) such other earlier date as the Revolving Credit Commitments shall terminate in full hereunder. With respect to Extended Revolving Credit Commitments, Revolving Credit Loans extended pursuant thereto, and Letters of Credit issued thereunder, clauses (a), (b) and (c) above shall be deemed replaced with the date specified in the applicable Revolving Extension Notice for any such Extended Revolving Credit Commitments.

 

“Revolving Extension Notice”: as defined in Section 9.21(b).

 

“Revolving Extensions of Credit”: as to any Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding and (b) such Lender’s Revolving Credit Percentage of the L/C Obligations then outstanding.

 

“S&P”: Standard & Poor’s Ratings Services.

 

“Sanctioned Country” shall mean, at any time, a country, region or territory that is subject to comprehensive Sanctions (as of the Second Amendment Effective Date, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine).

 

“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Kingdom, or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person.

 

“Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or other relevant sanctions authority or His Majesty’s Treasury of the United Kingdom.

 

“SEC”: the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

 

“Second Amendment” shall mean that certain Second Amendment to Credit Agreement, dated as of November 20, 2017, by and among the Borrower, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

 

 

“Second Amendment Effective Date” has the meaning set forth in the Second Amendment.”

 

“Second Lien Intercreditor Agreement”: as defined in the definition of Permitted Second Priority Refinancing Debt.

 

“Secured Parties”: as defined in the Guarantee and Collateral Agreement.

 

“Security Documents”: the collective reference to the Guarantee and Collateral Agreement, the Reaffirmation Agreement and all other security documents hereafter delivered to the Administrative Agent granting a Lien on any Property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.

 

“Seller”: General Mills, Inc., a Delaware corporation.

 

“Senior Note Indenture”: the Base Indenture, dated as of June 4, 2013, entered into by the Borrower and The Bank of New York Mellon Trust Company, N.A., as trustee, and the First Supplemental Indenture, dated as of June 4, 2013, entered into by the Borrower, the “Guarantors” under and as defined therein and The Bank of New York Mellon Trust Company N.A., as trustee, in each case in connection with the issuance of the Senior Notes, together with all instruments and other agreements entered into by the Borrower or such Subsidiaries in connection therewith, as the same may be amended, supplemented or otherwise modified from time to time in accordance with Section 6.9.

 

“Senior Notes”: the senior notes of the Borrower issued from time to time pursuant to the Senior Note Indenture.

 

“Seventh Amendment”: that certain Seventh Amendment to Credit Agreement, dated as of September 22, 2023, by and among the Borrower, the Subsidiary Guarantors, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

 

“Seventh Amendment Effective Date”: as defined in the Seventh Amendment.

 

“Sixth Amendment”: that certain Sixth Amendment to Credit Agreement, dated as of June 6, 2023, by and among the Borrower and the Administrative Agent.

 

“Sixth Amendment Effective Date”: as defined in the Sixth Amendment.

 

“SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

“SOFR Administrator”: the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

“SOFR Borrowing”: as to any Borrowing, the SOFR Loans comprising such Borrowing.

 

 

“SOFR Loan”: a Loan that bears interest at a rate based on Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.

 

“SOFR Tranche”: to the collective reference to SOFR Loans the then current Interest Periods with respect to all of which being on the same date and end on the same later date (whether or not such SOFR Loans shall originally have been made on the same day).

 

“Solvent”: when used with respect to any Person, that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (A) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

 

“Specified Acquisition Agreement Representations” the representations and warranties made by or on behalf of the Seller and the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that B&GNA or the Borrower (or any of their applicable Affiliates) has the right to terminate its (or their) obligations (or decline to consummate the Acquisition) under the Acquisition Agreement as a result of the breach of such representations in and warranties in the Acquisition Agreement.

 

“Specified Cash Management Agreement”: any Cash Management Agreement that is entered into by the Borrower or any of its Subsidiaries and any Cash Management Bank.

 

“Specified Change of Control”: the occurrence of (a) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than a Principal or a Related Party of a Principal, (b) the adoption of a plan relating to the liquidation or dissolution of the Borrower or (c) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as defined above), other than the Principals and their Related Parties, becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than 50% of the voting Capital Stock of the Borrower, measured by voting power rather than number of shares.

 

“Specified Hedge Agreement”: any Hedge Agreement entered into by the Borrower or any of its Subsidiaries and any Qualified Counterparty.

 

 

“Specified Representations”: the representations and warranties set forth in Sections 3.3(a), 3.4 (as it relates to entering into and performance of the definitive documentation for the Incremental Term Loans and/or Incremental Revolving Loans except that any such representation of an acquired person, if applicable, is or will be true as of the closing date of the Permitted Acquisition), 3.5 (as it relates to no conflicts between the definitive documentation for the Incremental Term Loans and/or Incremental Revolving Loans and the organizational documents of the Borrower and its Subsidiaries), 3.11, 3.14, 3.19 (it being understood that such representation shall be limited to the extent any Collateral (including the creation or perfection of any security interest therein) is not or cannot be provided on the applicable closing date (other than the pledge and perfection of Collateral with respect to which a security interest may be perfected by means of (x) delivery of a Uniform Commercial Code financing statement in proper form for filing, (y) delivery of certificated securities, if any or (z) delivery of intellectual property security agreements in proper form for filing or recording; provided that such security interest(s) will be required to be perfected after the applicable closing date pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower), 3.20 and the use of proceeds of the Loans not violating FCPA and OFAC and compliance in all material respects with the Patriot Act as set forth in Section 3.21.

 

“Specified Transaction”: (a) any Asset Sale of all or substantially all the assets of or all the Capital Stock of any of the Borrower’s Subsidiaries or of any business unit, line of business or division of the Borrower or any of its Subsidiaries, (b) any Permitted Acquisition or Investment that results in a Person becoming a Subsidiary of the Borrower or (c) any proposed incurrence of Indebtedness or making of a Restricted Payment in respect of which compliance with the financial covenants set forth in Section 6.1 is by the terms of this Agreement required to be calculated on a Pro Forma Basis.

 

“Subsidiary”: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.

 

“Subsidiary Guarantor”: each Subsidiary of the Borrower other than any Foreign Subsidiary.

 

“Swap Obligation”: 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.

 

“Tax”: any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings (including any interest, fines, penalties and additions related thereto) imposed by any Governmental Authority.

 

 

“Term Loan Commitments”: collectively, the Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments, the Tranche B-2 Term Loan Commitments, the Tranche B-3 Term Loan Commitments, the Tranche B-4 Term Loan Commitments (including any Fourth Amendment Incremental Term Loan Commitments) and, unless the context shall otherwise require, the Incremental Term Commitments and any Commitments in respect of Extended Term Loans.

 

“Term Loan Lenders”: collectively, the Tranche A Term Loan Lenders, the Tranche B Term Loan Lenders, the Tranche B-2 Term Loan Lenders, the Tranche B-3 Term Loan Lenders, the Tranche B-4 Term Loan Lenders (including any Fourth Amendment Incremental Term Loan Lenders) and, unless the context shall otherwise require, the Incremental Term Lenders.

 

“Term Loan Repayment Dates”: collectively, the Tranche A Term Loan Repayment Dates, the Tranche B-2 Term Loan Repayment Dates, the Tranche B-3 Term Loan Repayment Dates, the Tranche B-4 Term Loan Repayment Dates and the Incremental Term Loan Repayment Dates.

 

“Term Loans”: collectively, the Tranche A Term Loans, the Tranche B Term Loans, the Tranche B-2 Term Loans, the Tranche B-3 Term Loans, the Tranche B-4 Term Loans (including the Fourth Amendment Incremental Term Loans) and, unless the context shall otherwise require, the term “Term Loans” shall include any Extended Term Loans, any Incremental Term Loans and any Other Term Loans.

 

“Term SOFR”:

 

(a)            for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and

 

(b)            for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day;

 

 

provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than 0.00%, then Term SOFR shall be deemed to be 0.00%.

 

“Term SOFR Administrator”: CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

 

“Term SOFR Reference Rate”: the forward-looking term rate based on SOFR.

 

“Test Period”: a period of four consecutive Fiscal Quarters.

 

“Third Amendment”: that certain Third Amendment to Credit Agreement, dated as of October 10, 2019, by and among the Borrower, the Lenders party thereto, the Administrative Agent and the Collateral Agent.

 

“Third Amendment Effective Date”: as defined in the Third Amendment.

 

“Total Revolving Credit Commitments”: at any time, the aggregate amount of the Revolving Credit Commitments of the Lenders then in effect.

 

“Total Revolving Extensions of Credit”: at any time, the aggregate amount of the Revolving Extensions of Credit of the Lenders outstanding at such time.

 

“Tranche A Term Loan”: as defined in Section 2.1(a).

 

“Tranche A Term Loan Commitment”: as to any Tranche A Term Loan Lender, the obligation of such Lender, if any, to make a Tranche A Term Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Tranche A Term Loan Commitment” opposite such Lender’s name on Schedule 1 to the lender addendum delivered by such Lender on the Closing Date, or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Tranche A Term Loan Commitments as of the Closing Date is $300,000,000.

 

“Tranche A Term Loan Facility”: as defined in the definition of “Facility” in this Section 1.1.

 

 

“Tranche A Term Loan Lender”: each Lender that has a Tranche A Term Loan Commitment or is the holder of a Tranche A Term Loan.

 

“Tranche A Term Loan Maturity Date”: the earlier of (a) June 5, 2019 and (b) the date on which all Tranche A Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

 

“Tranche A Term Loan Percentage”: as to any Tranche A Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche A Term Loan Commitment then constitutes of the aggregate undrawn Tranche A Term Loan Commitments or, at any time after the Closing Date, the percentage which the aggregate principal amount of such Lender’s Tranche A Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche A Term Loans then outstanding.

 

“Tranche A Term Loan Repayment Date”: as defined in Section 2.3(a).

 

“Tranche B Term Loan”: as defined in Section 2.1(b).

 

“Tranche B Term Loan Commitment”: as to any Tranche B Term Loan Lender, the obligation of such Lender, if any, to make a Tranche B Term Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth on Schedule I to the Amendment Agreement or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Tranche B Term Loan Commitments as of the Restatement Funding Date was $750,000,000.

 

“Tranche B Term Loan Facility”: as defined in the definition of “Facility” in this Section 1.1.

 

“Tranche B Term Loan Lender”: each Lender that has a Tranche B Term Loan Commitment or is the holder of a Tranche B Term Loan.

 

“Tranche B Term Loan Percentage”: as to any Tranche B Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B Term Loan Commitment then constitutes of the aggregate undrawn Tranche B Term Loan Commitments or, at any time after the Restatement Funding Date, the percentage which the aggregate principal amount of such Lender’s Tranche B Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche B Term Loans then outstanding.

 

“Tranche B-2 Term Loan”: the loans in Dollars made to the Borrower on the First Amendment Effective Date in an aggregate principal amount of $640,109,890.11.

 

“Tranche B-2 Term Loan Commitment”: the commitments of the Tranche B-2 Term Loan Lenders pursuant to the First Amendment or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Tranche B-2 Term Loan Commitments as of the First Amendment Effective Date was $640,109,890.11.

 

 

“Tranche B-2 Term Loan Facility”: as defined in the definition of “Facility” in this Section 1.1.

 

“Tranche B-2 Term Loan Lender”: each Lender that has a Tranche B Term Loan Commitment or is the holder of a Tranche B Term Loan.

 

“Tranche B-2 Term Loan Percentage”: as to any Tranche B-2 Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B-2 Term Loan Commitment then constitutes of the aggregate undrawn Tranche B-2 Term Loan Commitments or, at any time after the First Amendment Effective Date, the percentage which the aggregate principal amount of such Lender’s Tranche B-2 Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche B-2 Term Loans then outstanding.

 

“Tranche B-3 Term Loan”: the loans in Dollars made to the Borrower on the Second Amendment Effective Date in an aggregate principal amount of $650,109,890.11.

 

“Tranche B-3 Term Loan Commitment”: the commitments of the Tranche B-3 Term Loan Lenders pursuant to the Second Amendment or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Tranche B-3 Term Loan Commitments as of the Second Amendment Effective Date is $650,109,890.11.

 

“Tranche B-3 Term Loan Facility”: as defined in the definition of “Facility” in this Section 1.1.

 

“Tranche B-3 Term Loan Lender”: each Lender that has a Tranche B Term Loan Commitment or is the holder of a Tranche B Term Loan.

 

“Tranche B-3 Term Loan Maturity Date”: the earlier of (a) November 2, 2022, and (b) the date on which all Tranche B Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise (but excluding, for the avoidance of doubt, any voluntary prepayment under Section 2.9).

 

“Tranche B-3 Term Loan Percentage”: as to any Tranche B-3 Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B-3 Term Loan Commitment then constitutes of the aggregate undrawn Tranche B-3 Term Loan Commitments or, at any time after the Second Amendment Effective Date, the percentage which the aggregate principal amount of such Lender’s Tranche B-3 Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche B-3 Term Loans then outstanding.

 

“Tranche B-4 Term Loan”: (i) the loans in Dollars made to the Borrower on the Third Amendment Effective Date in an aggregate principal amount of $450,000,000.00 and (ii) the loans in Dollars made to the Borrower on the Fourth Amendment Effective Date in an aggregate principal amount of $300,000,000.00. Upon the occurrence of the Fourth Amendment Effective Date, the Fourth Amendment Incremental Term Loans shall automatically and without further action by any Person constitute additional Tranche B-4 Term Loans (and shall have the same terms as the Tranche B-4 Term Loans after giving effect to the Fourth Amendment) and shall be part of the same class of Loans as the Tranche B-4 Term Loans, in each case for all purposes of this Agreement and the other Loan Documents. As of the Fourth Amendment Effective Date, the aggregate principal amount of Tranche B-4 Term Loans outstanding is $671,625,000.00.

 

 

“Tranche B-4 Term Loan Commitment”: the commitments of the Tranche B-4 Term Loan Lenders pursuant to the Third Amendment, the commitments of the Fourth Amendment Incremental Term Loan Lenders pursuant to the Fourth Amendment or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Tranche B-4 Term Loan Commitments as of the Third Amendment Effective Date is $450,000,00.00. The aggregate amount of the Tranche B-4 Term Loan Commitments as of the Fourth Amendment Effective Date is $300,000,000.00. Upon the occurrence of the Fourth Amendment Effective Date, the Fourth Amendment Incremental Term Loan Commitments shall automatically and without further action by any Person constitute additional Tranche B-4 Term Loan Commitments (and shall have the same terms as the Tranche B-4 Term Loan Commitments after giving effect to the Fourth Amendment) and shall be part of the same class of Commitments as the Tranche B-4 Term Loan Commitments, in each case for all purposes of this Agreement and the other Loan Documents.

 

“Tranche B-4 Term Loan Facility”: as defined in the definition of “Facility” in this Section 1.1.

 

“Tranche B-4 Term Loan Lender”: each Lender that has a Tranche B-4 Term Loan Commitment or is the holder of a Tranche B-4 Term Loan.

 

“Tranche B-4 Term Loan Maturity Date”: the earlier of (a) October 10, 2026, and (b) the date on which all Tranche B-4 Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise (but excluding, for the avoidance of doubt, any voluntary prepayment under Section 2.9).

 

“Tranche B-4 Term Loan Percentage”: as to any Tranche B-4 Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B-4 Term Loan Commitment then constitutes of the aggregate undrawn Tranche B-4 Term Loan Commitments or, at any time after the Third Amendment Effective Date, the percentage which the aggregate principal amount of such Lender’s Tranche B-4 Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche B-4 Term Loans then outstanding.

 

“Tranche B-4 Term Loan Repayment Date”: as defined in Section 2.3(a).

 

“Transactions”: collectively, (a) the consummation of the Acquisition, (b) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party, (c) the borrowings on the Restatement Funding Date and the use of proceeds thereof, (d) the granting of Liens pursuant to the Security Documents and (e) any other transactions related to or entered into in connection with any of the foregoing.

 

“Transferee”: as defined in Section 9.14.

 

 

“Transformative Acquisition” any acquisition by the Borrower or any Subsidiary that is either (a) not permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition or (b) if permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition, would not provide the Borrower and its Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of their combined operations following such consummation, as determined by the Borrower acting in good faith.

 

“Type”: as to any Loan, its nature as a Base Rate Loan or a SOFR Loan.

 

“UK Financial Institution” any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“UK Resolution Authority” the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

“Unadjusted Benchmark Replacement” the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

“USA PATRIOT Act”: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended.

 

“U.S. Government Securities Business Day”: any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

 

“Weighted Average Life to Maturity”: when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

 

“Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

 

“Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower.

 

“Withdrawal Liability”: liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.

 

 

“Write-Down and Conversion Powers” (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

“Yield Differential”: as defined in Section 2.32(b).

 

1.2            Other Definitional Provisions.

 

(a)            Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

 

(b)            As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.

 

(c)            The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(d)            The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

(e)            Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to in Section 6.1 shall be made, without giving effect to (i) any election under Statement of Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party or any Subsidiary of any Loan Party at “fair value” or (ii) any change to lease accounting rules from those in effect pursuant to Financial Accounting Standards Board Accounting Standards Codification 840 (Leases) and other related lease accounting guidance as in effect on the Closing Date.

 

1.3            Pro Forma Basis. Notwithstanding anything to the contrary contained herein, financial ratios and tests (including the Consolidated Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage Ratio) pursuant to this Agreement shall be calculated in the manner prescribed by this Section 1.3.

 

 

(a)            In the event that the Borrower or any of its Subsidiaries incurs, assumes, guarantees, redeems, repays, repurchases, retires or extinguishes any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) subsequent to the end of the Test Period for which such financial ratio or test is being calculated but prior to or simultaneously with the event for which such calculation is being made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, repayment, repurchase, retirement or extinguishment of Indebtedness, as if the same had occurred on the last day of the applicable Test Period (except in the case of the Consolidated Interest Coverage Ratio (or similar ratio), as if the same had occurred on the first day of the applicable Test Period).

 

(b)            For purposes of calculating any financial ratio or test, Specified Transactions that have been made by the Borrower or any of its Subsidiaries during the applicable Test Period or subsequent to such Test Period and prior to or simultaneously with the event for which such calculation is being made shall be given pro forma effect assuming that all such Specified Transactions (and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the applicable Test Period. If since the beginning of any such Test Period any Person that subsequently became a Subsidiary of the Borrower or was merged, amalgamated or consolidated with or into the Borrower or any of its Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.3, then any applicable financial ratio or test shall be calculated giving pro forma effect thereto for such period as if such Specified Transaction occurred at the beginning of the applicable Test Period.

 

(c)            Whenever pro forma effect is to be given to a Specified Transaction or the Transactions, the pro forma calculations shall be made in good faith by a Responsible Officer (including the “run-rate” cost savings and synergies resulting from such Specified Transactions that have been or are expected to be realized (“run-rate” means the full recurring benefit for a period that is associated with any action taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements), net of the amount of actual benefits realized during such period from such actions; provided that with respect to the Transactions or to any Specified Transaction, such cost savings or synergies for any period shall not exceed 10% of Consolidated EBITDA (after giving effect to such Transaction or Specified Transaction, but prior to giving effect to such adjustments in respect of such cost savings or synergies) for such period); provided that (i) such amounts are projected by the Borrower in good faith to result from actions taken within 12 months after the end of such Test Period in which such Specified Transaction occurred (or, in the case of the Transactions, the 12 months after the Closing Date) and (ii) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA for such Test Period.

 

 

(d)            If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Consolidated Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any interest hedging arrangements applicable to such Indebtedness). Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, an interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower may designate.

 

(e)            Notwithstanding the foregoing, when calculating the Consolidated Interest Coverage Ratio and Consolidated Leverage Ratio for the purposes of Section 6.1, the events described in Sections 1.3(b), (c) and (d) above that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

 

1.4            Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) any reference to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person and (b) any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

 

1.5            Rates. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to Base Rate, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, or any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

 

 

Section 2. AMOUNT AND TERMS OF COMMITMENTS; LETTERS OF CREDIT

 

2.1           Term Loan Commitments. (a) Subject to the terms and conditions in the Existing Credit Agreement and relying upon the representations and warranties therein set forth, each Tranche A Term Loan Lender made a tranche A term loan (each, a “Tranche A Term Loan”) on the Closing Date to the Borrower;

 

(b)            Subject to the terms and conditions herein and relying upon the representations and warranties herein set forth, each Tranche B Term Loan Lender, severally and not jointly, made, on the Restatement Funding Date, a tranche B term loan (each, a “Tranche B Term Loan”) to the Borrower in an amount equal to such Lender’s Tranche B Term Loan Commitment;

 

(c)            Pursuant to the terms of the First Amendment, the Tranche B-2 Term Loan Lenders made Tranche B-2 Term Loans in Dollars (whether by agreeing to exchange existing Tranche B Term Loans or by committing to make new term loans) to the Borrower on the First Amendment Effective Date;

 

(d)            Pursuant to the terms of the Second Amendment, the Tranche B-3 Term Loan Lenders made Tranche B-3 Term Loans in Dollars (whether by agreeing to exchange existing Tranche B-2 Term Loans or by committing to make new loans) to the Borrower on the Second Amendment Effective Date;

 

(e)            Pursuant to the terms of the Third Amendment, the Tranche B-4 Term Loan Lenders, severally and not jointly, have agreed to make Tranche B-4 Term Loans in Dollars to the Borrower on the Third Amendment Effective Date;

 

(f)             Pursuant to the terms of the Fourth Amendment, the Fourth Amendment Incremental Term Loan Lenders, severally and not jointly, have agreed to make Fourth Amendment Incremental Term Loans in Dollars to the Borrower on the Fourth Amendment Effective Date in a principal amount not to exceed its Fourth Amendment Incremental Term Loan Commitment; and

 

(g)            Subject to the terms and conditions and relying upon the representations and warranties set forth in the applicable Incremental Assumption Agreement, each Lender having an Incremental Term Loan Commitment, severally and not jointly, hereby agrees to make Incremental Term Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Term Loan Commitment.

 

 

The Borrower has made a borrowing under the total Tranche A Term Loan Commitment on the Closing Date. The Borrower has made a borrowing under the Tranche B Term Loan Commitment on the Restatement Funding Date. The Borrower has made a borrowing under (i) the Tranche B-2 Term Loan Commitment on the First Amendment Effective Date and (ii) the Tranche B-3 Term Loan Commitment on the Second Amendment Effective Date. The Borrower has made a borrowing under the Tranche B-4 Term Loan Commitment on the Third Amendment Effective Date. The Borrower has made a borrowing under the Fourth Amendment Incremental Term Loan Commitment on the Fourth Amendment Effective Date. Any amount borrowed under this Section 2.1 and subsequently repaid or prepaid may not be reborrowed. All (i) Tranche B Term Loans outstanding on the First Amendment Effective Date and (ii) Tranche B-2 Term Loans outstanding on the Second Amendment Effective Date were repaid in full. All (i) Tranche A Term Loans and (ii) Tranche B-3 Term Loans were repaid in full. Subject to Sections 2.9 and 2.10, all amounts owed hereunder with respect to the Tranche B-4 Term Loans (including the Fourth Amendment Incremental Term Loans) and the Incremental Term Loans shall be paid in full no later than the Tranche B-4 Term Loan Maturity Date or the applicable Incremental Term Loan Maturity Date, respectively. Each Lender’s Tranche A Term Loan Commitment terminated immediately and without further action on the Closing Date. Each Lender’s Tranche B Term Loan Commitment terminated immediately and without further action on the Restatement Funding Date. Each Lender’s Tranche B-2 Term Loan Commitment terminated immediately and without further action on the First Amendment Effective Date after giving effect to such Lender’s Tranche B-2 Term Loan Commitment on such date. Each Lender’s Tranche B-3 Term Loan Commitment terminated immediately and without further action on the Second Amendment Effective Date after giving effect to such Lender’s Tranche B-3 Term Loan Commitment on such date. Each Lender’s Tranche B-4 Term Loan Commitment under the Third Amendment terminated immediately and without further action on the Third Amendment Effective Date upon funding of the Tranche B-4 Term Loans. Each Lender’s Fourth Amendment Incremental Term Loan Commitment shall terminate immediately and without further action on the Fourth Amendment Effective Date upon funding of the Fourth Amendment Incremental Term Loans. The Incremental Term Loan Commitments shall terminate as provided in the related Incremental Assumption Agreement. The Term Loans may from time to time be SOFR Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.11.

 

2.2            Procedure for Term Loan Borrowings. The Borrower shall deliver to the Administrative Agent an irrevocable notice (which notice must be received by the Administrative Agent prior to 10:00 A.M., New York City time, one Business Day to the anticipated closing date set forth in the applicable Incremental Assumption Agreement) requesting that the applicable Term Loan Lenders make the applicable Term Loans on the date set forth in the applicable Incremental Assumption Agreement and specifying the amount to be borrowed. Upon receipt of such notice of borrowing the Administrative Agent shall promptly notify each applicable Term Loan Lender thereof. Not later than 12:00 noon, New York City time, on the Fourth Amendment Effective Date (or on such other date set forth in the applicable Incremental Assumption Agreement) each applicable Term Loan Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan or Term Loans to be made by such Lender on the Fourth Amendment Effective Date (or on such other date set forth in the applicable Incremental Assumption Agreement). The Administrative Agent shall make available to the Borrower the aggregate of the amounts made available to the Administrative Agent by the applicable Term Loan Lenders, in like funds as received by the Administrative Agent.

 

2.3            Repayment of Term Loans. (a) The Borrower shall pay to the Administrative Agent, for the account of the Tranche B-4 Term Loan Lenders, on the last Business Day of each March, June, September and December, commencing on the last day of the first Fiscal Quarter following the Third Amendment Effective Date (each such date, a “Tranche B-4 Term Loan Repayment Date”), an amount equal 0.25% of the original principal amount of such Tranche B-4 Term Loans made on the Third Amendment Effective Date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment; provided that, in the event any new Tranche B-4 Term Loans are made, such new Tranche B-4 Term Loans shall be repaid on each Tranche B-4 Term Loan Repayment Date occurring on or after the applicable Tranche B-4 Increased Amount Date in an amount equal to (i) the aggregate principal amount of new Tranche B-4 Term Loans of the applicable series of new Tranche B-4 Term Loans, times (ii) the ratio (expressed as a percentage) of (A) the amount of all other Tranche B-4 Term Loans being repaid on such Tranche B-4 Term Loan Repayment Date and (B) the total aggregate principal amount of all other Tranche B-4 Term Loans outstanding on such Tranche B-4 Increased Amount Date.

 

 

Notwithstanding the foregoing, (x) such Tranche B-4 Term Loan quarterly payments shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche B-4 Term Loans in accordance with Section 2.9 or 2.10, as applicable; and (y) the Tranche B-4 Term Loans, together with all other amounts owed hereunder with respect thereto, shall in any event be paid in full no later than the Tranche B-4 Term Loan Maturity Date.

 

It is hereby acknowledged and agreed that, as of the Fourth Amendment Effective Date, all amortization payments required under this Section 2.3 prior to the Tranche B-4 Term Loan Maturity Date have been paid in full, and no quarterly principal payments of Tranche B-4 Term Loans (including, for the avoidance of doubt, Fourth Amendment Incremental Term Loans) pursuant to this Section 2.3 shall be required after the Fourth Amendment Effective Date.

 

(b)            The Borrower shall pay to the Administrative Agent, for the account of the Incremental Term Lenders, on each Incremental Term Loan Repayment Date, a principal amount of the Other Term Loans (as adjusted from time to time pursuant to Sections 2.9 and 2.10) equal to the amount set forth for such date in the applicable Incremental Assumption Agreement, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.

 

(c)            To the extent not previously paid, all Term Loans shall be due and payable on Tranche B-4 Term Loan Maturity Date, as applicable, and all Other Term Loans shall be due and payable on the applicable Incremental Term Loan Maturity Date, in each case, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment.

 

(d)            In the event that all or any portion of the Tranche B-4 Term Loans then outstanding are prepaid in connection with a Repricing Transaction prior to the six-month anniversary of the Fourth Amendment Effective Date, such prepayment shall be accompanied by a repayment fee equal to 1.00% of the aggregate principal amount of the Tranche B-4 Term Loans so prepaid.

 

2.4            Revolving Credit Commitments. (a) Subject to the terms and conditions hereof, each Revolving Credit Lender severally agrees to make Revolving Credit Loans to the Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Credit Percentage of the L/C Obligations then outstanding, does not exceed the amount of such Lender’s Revolving Credit Commitment; provided that the sum of (x) the aggregate principal amount of Revolving Credit Loans plus (y) the aggregate amount of L/C Obligations, in each case outstanding on and as of the Closing Date, shall not exceed $50,000,000. During the Revolving Credit Commitment Period the Borrower may use the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Credit Loans may from time to time be SOFR Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.11, provided that no Revolving Credit Loan shall be made as a SOFR Loan after the day that is one month prior to the Revolving Credit Termination Date.

 

 

(b)            Subject to the terms and conditions and relying upon the representations and warranties set forth in the applicable Incremental Assumption Agreement, each Lender having an Incremental Revolving Commitment, severally and not jointly, hereby agrees to make Incremental Revolving Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Revolving Commitment. The Borrower shall repay all outstanding Revolving Credit Loans on the Revolving Credit Termination Date.

 

2.5            Procedure for Borrowing Revolving Credit Loans. The Borrower may borrow Revolving Credit Loans under the Revolving Credit Commitments during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 12:00 noon, New York City time, (i) three Business Days prior to the requested Borrowing Date, in the case of SOFR Loans, or (ii) one Business Day prior to the requested Borrowing Date, in the case of Base Rate Loans), specifying (A) the amount and Type of Revolving Credit Loans to be borrowed, (B) the requested Borrowing Date and (C) in the case of SOFR Loans, the length of the initial Interest Period therefor. If no election as to the Type of Loans is specified in any such notice, then the requested Loan shall be a Base Rate Loan. If no Interest Period with respect to any SOFR Loan is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Each borrowing under the Revolving Credit Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Revolving Credit Commitments are less than $1,000,000, such lesser amount) and (y) in the case of SOFR Loans, $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Lender thereof. Each Lender will make the amount of its pro rata share of each borrowing of Revolving Credit Loans available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00 noon, New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent in like funds as received by the Administrative Agent.

 

2.6            Repayment of Loans; Evidence of Debt. (a)  The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the appropriate Lender (i) the then unpaid principal amount of each Revolving Credit Loan of such Lender on the Revolving Credit Termination Date (or such earlier date on which such Loans become due and payable pursuant to Section 7), (ii) the then unpaid principal amount of each Tranche A Term Loan on the Tranche A Term Loan Maturity Date, (iii) the then unpaid principal amount of each Tranche B-3 Term Loan on the Tranche B-3 Term Loan Maturity Date, (iv) the then unpaid principal amount of each Tranche B-4 Term Loan on the Tranche B-4 Term Loan Maturity Date and (v) the then unpaid principal amount of each Incremental Term Loan on the applicable Incremental Term Loan Maturity Date. All Tranche A Term Loans were repaid in full. All Tranche B Term Loans outstanding on the First Amendment Effective Date were repaid in full on the First Amendment Effective Date. All Tranche B-2 Term Loans outstanding on the Second Amendment Effective Date were repaid in full on the Second Amendment Effective Date. All Tranche B-3 Term Loans were repaid in full. The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans (other than the Tranche B-4 Term Loans) from time to time outstanding from the Closing Date until payment in full thereof at the rates per annum, and on the date, set forth in Section 2.13. The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Tranche B-4 Term Loans from time to time outstanding from the Fourth Amendment Effective Date until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.13.

 

 

(b)            Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

 

(c)            The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 9.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(d)            The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.6(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

 

(e)            The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any Revolving Credit Loans or Tranche B-4 Term Loans, as the case may be, of such Lender, substantially in the forms of Exhibit F-1 and F-3, respectively, with appropriate insertions as to date and principal amount; provided that delivery of such notes shall not be a condition precedent to the making of the Loans on the Closing Date or the Restatement Funding Date.

 

2.7            Commitment Fees, Other Fees.  (a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender which is not a Defaulting Lender a commitment fee for the period from and including the Closing Date to the last day of the Revolving Credit Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Credit Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last Business Day of each March, June, September and December and on the Revolving Credit Termination Date (or any earlier date of termination of the Revolving Credit Commitments), commencing on the first of such dates to occur after the Closing Date; provided that to the extent previously paid by the Borrower to the Administrative Agent, any such commitment fee owing to a Lender which is a Defaulting Lender shall be withheld by the Administrative Agent for so long as such Lender remains a Defaulting Lender.

 

 

(b)            The Borrower agrees to pay to the Agents and the Arrangers the fees in the amounts and on the dates agreed to in writing by the Borrower, the Agents and the Arrangers, as applicable, prior to the Restatement Funding Date. All such fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent, the Collateral Agent or the Arrangers, as applicable. Once paid, none of such fees shall be refundable under any circumstances.

 

2.8            Termination or Reduction of Revolving Credit Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent (which shall promptly notify each Lender thereof), to terminate the Revolving Credit Commitments or, from time to time, to reduce the amount of the Revolving Credit Commitments; provided that no such termination or reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Credit Commitments then in effect.

 

2.9            Optional Prepayments. The Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty (except as otherwise provided herein, including Section 2.3(e)), upon irrevocable notice delivered to the Administrative Agent, no later than 12:00 noon, New York City time, at least three Business Days prior thereto in the case of SOFR Loans and at least one Business Day prior thereto in the case of Base Rate Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of Revolving Credit Loans or Term Loans and whether of SOFR Loans or Base Rate Loans; provided that such notice of prepayment may state that such notice is conditioned upon the effectiveness of other financing, any public offering or any merger, acquisition or divestiture, in which case such notice may be revoked by notice to the Administrative Agent on or prior to the specified effective date if such condition is not satisfied (it being understood and agreed that the foregoing shall not impair or otherwise limit or reduce the Borrower’s obligation to indemnify and hold harmless Lenders pursuant to Section 2.19(b) in connection with any such default in making any prepayment as specified in a notice of borrowing that is later revoked); provided, further, that if a SOFR Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.19. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of prepayments of Base Rate Loans that are Revolving Credit Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Revolving Credit Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple thereof. Voluntary prepayments of Term Loans shall be applied to any tranche or tranches of Term Loans as specified by the Borrower and, within any such tranche so specified by the Borrower, to the scheduled principal payments of Loans under such applicable tranche or tranches as directed by the Borrower and in the absence of such direction, in the direct order of maturity.

 

 

2.10          Mandatory Prepayments.  (a)  If any Indebtedness shall be incurred by any Loan Party or its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 6.2 (other than pursuant to clause (m) thereof)), then on the date of such incurrence, the Loans shall be prepaid by an amount equal to the amount of the Net Cash Proceeds of such incurrence, as set forth in Section 2.10(d).

 

(b)            If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, not later than five Business Days following the date of receipt by the Borrower of such Net Cash Proceeds, the Loans shall be prepaid by an amount equal to the amount of such Net Cash Proceeds, as set forth in Section 2.10(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.10(d). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 6.5.

 

(c)            [Reserved];

 

(d)            Amounts to be applied in connection with prepayments made pursuant to this Section 2.10 (other than amounts to be applied in respect of Indebtedness incurred in accordance with Section 6.2(m)) shall be allocated pro rata among the Tranche B-4 Term Loans, any Other Term Loans and, any Extended Term Loans and any Incremental Equivalent Indebtedness (except to the extent that (i) any Loan Modification Offer for any Extended Term Loans provides that such Extended Term Loans shall participate on a lesser basis or not at all or (ii) any Incremental Assumption Agreement for any Other Term Loans or documentation governing any Incremental Equivalent Indebtedness provides that such Other Term Loans or Incremental Equivalent Indebtedness, as applicable, shall participate on a lesser basis or not at all) and applied in direct order of maturity against the remaining scheduled installments of principal due in respect of the Tranche B-4 Term Loans, any Other Term Loans and any applicable Extended Term Loans under Sections 2.3(a), 2.3(b), 2.3(c) and under the applicable Loan Modification Offer, respectively; provided that in the event there are no Tranche B-4 Term Loans, Other Term Loans or, Extended Term Loans or Incremental Equivalent Indebtedness outstanding, mandatory prepayments shall be applied to the prepayment of outstanding Revolving Credit Loans (without any accompanying mandatory reduction of the Revolving Credit Commitments) in direct order of maturity, and second to cash collateralize outstanding Letters of Credit pro rata. Prepayments of Loans shall in all cases be applied first to Base Rate Loans and second to SOFR Loans. Amounts to be applied pursuant to Section 2.10(a) resulting from Indebtedness incurred in accordance with Section 6.2(m) shall be applied as directed by the Borrower.

 

(e)            The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.10, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three Business Days’ (but in any event no later than one Business Day’s) prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Loans under this Section 2.10 shall be subject to Section 2.19, but shall otherwise be without premium or penalty, and shall be accompanied by (except in the case of prepayments of Base Rate Loans that are Revolving Credit Loans) accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.

 

 

2.11          Conversion and Continuation Options.  (a)  The Borrower may elect from time to time to convert SOFR Loans to Base Rate Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election, provided that any such conversion of SOFR Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect, from time to time, to convert Base Rate Loans to SOFR Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election (which notice shall specify the length of the initial Interest Period therefor); provided that no Base Rate Loan may be converted into a SOFR Loan (i) when any Event of Default has occurred and is continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions or (ii) after the date that is one month prior to the final scheduled termination or maturity date of such Facility. If no Interest Period with respect to any SOFR Loan is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

(b)            Any SOFR Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loan; provided that no SOFR Loan under a particular Facility may be continued as such (i) when any Event of Default has occurred and is continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuations or (ii) after the date that is one month prior to the final scheduled termination or maturity date of such Facility, and provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such SOFR Loan shall be automatically converted to a Base Rate Loan on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

2.12          Minimum Amounts and Maximum Number of SOFR Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional prepayments of SOFR Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the SOFR Loans comprising each SOFR Tranche shall be equal to $1,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than ten SOFR Tranches shall be outstanding at any one time.

 

2.13          Interest Rates and Payment Dates.  (a)  Each SOFR Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to Term SOFR determined for such day plus the Applicable Margin.

 

 

(b)            Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin.

 

(c)            If any Event of Default under Section 7(a) or 7(f) has occurred and is continuing, then, from the date of such Event of Default and for so long as such Event of Default is continuing, to the fullest extent permitted by law, all amounts outstanding under this Agreement and the other Loan Documents shall bear interest (after as well as before judgment), payable on demand, (i) in the case of principal, at the rate otherwise applicable to such Loan pursuant to the foregoing provisions of this Section 2.13 plus 2.00% per annum and (ii) in all other cases, at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when determined by reference to the Prime Rate and over a year of 360 days at all other times) equal to the rate that would be applicable to Revolving Credit Loans that are Base Rate Loans plus 2.00% per annum.

 

(d)            Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) above shall be payable from time to time on demand.

 

2.14          Computation of Interest and Fees. (a)  Interest, fees and commissions payable pursuant hereto shall be calculated on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when determined by reference to the Prime Rate and over a year of 360 days at all other times. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of Term SOFR. Any change in the interest rate on a Loan resulting from a change in the Base Rate or Term SOFR Reference Rate shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

 

(b)            Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.14(a).

 

2.15            Inability to Determine Interest Rate and Alternate Rate of Interest.

 

(a)            Subject to this Section 2.15, if prior to the first day of any Interest Period:

 

(i)            the Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining Term SOFR, for such Interest Period, or

 

(ii)            the Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that Term SOFR determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,

 

 

the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any SOFR Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to SOFR Loans shall be continued as Base Rate Loans and (z) any outstanding SOFR Loans under the relevant Facility shall be converted, on the last day of the then current Interest Period with respect thereto, to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no further SOFR Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to SOFR Loans.

 

(b)            Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is based upon Daily Simple SOFR, all interest payments will be payable on a quarterly basis.

 

(c)            Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

(d)            Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.15(e) and (v) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.15, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.15.

 

 

(e)            Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(f)             Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans and (ii) any outstanding affected SOFR Loans will be deemed to have been converted to Base Rate Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.

 

2.16           Pro Rata Treatment and Payments.

 

(a)            Subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders, and other than with respect to any substituted Lender in accordance with Section 2.22 or as required or permitted under Section 2.20 or 9.21, each borrowing by the Borrower of Loans hereunder, each payment or prepayment of principal in respect of any Loans hereunder, each payment of commitment fees pursuant to this Agreement, each reduction of the Term Loan Commitments or the Revolving Credit Commitments and each conversion or continuation of any borrowing of Loans hereunder shall be allocated pro rata among the Lenders in accordance with their respective applicable Commitments (or if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans); provided that the foregoing provisions of this Section 2.16(a) shall not be construed to apply to any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments to any assignee or participant, other than to the Borrower or any of its Subsidiaries or Affiliates (unless made in accordance with Section 9.6(i) hereto) (as to which the foregoing provisions of this Section 2.16(a) shall apply), made pursuant to and in accordance with the express provisions of this Agreement. Each Lender agrees that in computing such Lender’s portion of any borrowing of Loans to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such borrowing of Loans to the next higher or lower whole Dollar amount. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit.

 

 

(b)            All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 12:00 noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made after 12:00 noon, New York City time, on any Business Day shall be deemed to have been made on the next succeeding Business Day (or the same Business Day in the Administrative Agent’s sole discretion). The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. Except as otherwise expressly provided herein, if any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a SOFR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

 

(c)            Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.

 

(d)            Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days of such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at a rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

 

 

2.17            Requirements of Law. (a)  Notwithstanding any other provision of this Agreement, if any Change in Law shall:

 

(i)            subject the Administrative Agent, any Lender or the Issuing Lender to any Taxes in connection with this Agreement or any loan, letter of credit or commitment made hereunder or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation of payments in respect thereof (except for Indemnified Taxes or Other Taxes that are the subject of Section 2.18 and the imposition of any Excluded Tax payable by such Lender or the Issuing Lender);

 

(ii)            impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any Lender or the Issuing Lender or any office of such Lender or the Issuing Lender ; or

 

(iii)          shall impose on such Lender or the Issuing Lender or any interbank market any other condition affecting this Agreement or SOFR Loans made by such Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Lender, by an amount which such Lender or the Issuing Lender deems to be material, of making, converting into, continuing or maintaining SOFR Loans or issuing, maintaining or participating in Letters of Credit, or to reduce any amount received or receivable hereunder in respect thereof (whether of principal, interest or otherwise), then, in any such case, the Borrower shall promptly pay such Lender or the Issuing Lender, upon its demand, any additional amounts necessary to compensate such Lender or the Issuing Lender for such increased cost or reduced amount received or receivable. If any Lender or the Issuing Lender becomes entitled to claim any additional amounts pursuant to this Section, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.

 

(b)            If any Lender or the Issuing Lender shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Lender’s capital or liquidity (or on the capital or liquidity of such Lender’s or the Issuing Lender’s holding company) as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Lender pursuant hereto to a level below that which such Lender or the Issuing Lender of such Lender’s or the Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Lender’s policies and the policies of such Lender’s or the Issuing Lender’s holding company with respect to capital adequacy or liquidity requirements) by an amount deemed by such Lender or the Issuing Lender to be material, then from time to time, after submission by such Lender or the Issuing Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender or the Issuing Lender such additional amount or amounts as will compensate such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company for such reduction.

 

 

(c)            A certificate as to any additional amounts payable pursuant to this Section submitted by any Lender or the Issuing Lender or their respective applicable holding company to the Borrower setting out in reasonable detail the method of determination of such additional amounts (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. The Borrower shall pay such Lender or the Issuing Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same. The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of amounts payable hereunder.

 

(d)            Failure or delay on the part of any Lender or the Issuing Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such Lender’s or the Issuing Lender’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or the Issuing Lender under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is 120 days prior to such request if such Lender or the Issuing Lender knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 120-day period. The protection of this Section shall be available to each Lender and the Issuing Lender regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

 

2.18          Taxes.  (a)Any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Taxes, except as required by applicable law; provided that, if any Indemnified Taxes or Other Taxes are required by law to be withheld or deducted from such payments, then (i) the sum payable by the Borrower or any other Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, each Lender and the Issuing Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the Borrower or such Loan Party, or the Administrative Agent shall make such deductions or withholdings and (iii) the Borrower or such Loan Party, or the Administrative Agent shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law.

 

 

 

(b)            In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

  

(c)            The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) 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 Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the Issuing Lender, or by the Administrative Agent on behalf of itself, a Lender or the Issuing Lender, shall be conclusive absent manifest error.

 

(d)            As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e)            (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.18(e)(ii) and (f)) shall not be required if in the Lender's judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense (or, in the case of a Change in Law, any incremental material unreimbursed cost or expense) or would materially prejudice the legal or commercial position of such Lender or if such Lender is not legally eligible to deliver such documentation. Upon the reasonable request of such Borrower or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 2.18(e). If any form or certification previously delivered pursuant to this Section 2.18(e) expires or becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly notify such Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification or notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so.

 

 

(ii) Without limiting the generality of the foregoing, any Foreign Lender shall, if it is legally eligible to do so, deliver to such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a party hereto and from time to time thereafter upon the expiration of the previously delivered form or upon the reasonable request of the Borrower or the Administrative Agent, two accurate and complete executed copies of whichever of the following is applicable: (A) IRS Form W-8BEN or W-8BEN-E (or the relevant successor form) claiming eligibility for benefits of an income tax treaty to which the U.S. is a party; (B) IRS Form W-8ECI (or its successor form); (C) IRS Form W-8IMY (or its successor form), together with any required attachments; (D) IRS Form W-8EXP (or its successor form); or (E) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under the Code both, IRS Form W-8BEN or W-8BEN-E and a U.S. Tax Compliance Certificate substantially in the applicable form of Exhibit H; provided that if a Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner. Any Lender that is not a Foreign Lender shall deliver to Borrower and the Administrative Agent (at the times and in the manner provided with respect to Foreign Lenders under the preceding sentence) IRS Form W-9 (or its successor form).

  

(f)            If a payment made to a Lender under this Agreement would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Administrative Agent as may be necessary for the Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.18(f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

(g)            If the Administrative Agent, any Lender or the Issuing Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.18, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the Issuing Lender, 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 the Borrower, upon the request of the Administrative Agent, such Lender or the Issuing Lender agrees to repay the amount paid over to the Borrower (plus any interest, penalties or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the Issuing Lender in the event the Administrative Agent, such Lender or the Issuing Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.18(g), in no event will the Administrative Agent, any Lender or the Issuing Lender be required to pay any amount to the Borrower pursuant to this paragraph if the payment of such amount would place the Administrative Agent, such Lender or the Issuing Lender in a less favorable net after-Tax position than it would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. Nothing in this Section 2.18(g) shall be construed to require the Administrative Agent, any Lender or the Issuing Lender to make available its Tax returns or any other information relating to its Taxes that it deems confidential to the Borrower or any other Person.

 

 

(h)            For the avoidance of doubt, for purposes of determining withholding Taxes imposed under FATCA, (a) as of the Third Amendment Effective Date, the Tranche B-4 Loan Terms issued on the Third Amendment Effective Date shall not and (b) as of the Fourth Amendment Effective Date, the Fourth Amendment Incremental Term Loans issued on the Fourth Amendment Effective Date shall not, in each case, qualify as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i) or 1.1471-2T(b)(2)(i).

 

(i)             Barclays, as Administrative Agent, and any successor or supplemental Administrative Agent that is not a “United States person” within the meaning of Section 7701(a)(3) of the Code, shall deliver to the Borrower, on or prior to the date on which it becomes a party to this Agreement, two duly completed copies of IRS Form W-8IMY, with the effect that the Borrower may make payments to the Administrative Agent, to the extent such payments are received by the Administrative Agent as an intermediary, without deduction or withholding of any Taxes imposed by the United States.

 

2.19            Indemnity. The Borrower agrees to indemnify each Lender for and to hold each Lender harmless from any loss or expense that such Lender may reasonably sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of SOFR Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment or conversion of SOFR Loans on a day that is not the last day of an Interest Period with respect thereto. A certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

2.20            Illegality. Notwithstanding any other provision herein, if any Change in Law shall make it unlawful for any Lender to make or maintain SOFR Loans as contemplated by this Agreement or to give effect to its obligations as contemplated hereby with respect to any SOFR Loan, then (a) the commitment of such Lender hereunder to make SOFR Loans, continue SOFR Loans as such and convert Base Rate Loans to SOFR Loans shall forthwith be canceled, (b) such Lender’s Loans then outstanding as SOFR Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law and (c) all payments and prepayments of principal that would otherwise have been applied to repay the SOFR Loans that would have been made by such Lender or the converted SOFR Loans of such Lender shall instead be applied to repay the Base Rate Loans made by such Lender in lieu of, or resulting from the conversion of, such SOFR Loans. If any such conversion of a SOFR Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 2.19.

  

 

2.21            Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.17, 2.18(a) or 2.20 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.17, 2.18(a) or 2.20. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

2.22            Substitution of Lenders. Upon the receipt by the Borrower from any Lender of a claim under Section 2.17, 2.18 or 2.20, or upon receipt by the Borrower of written notice that any Lender has become a Defaulting Lender in accordance with the provisions set forth in the definition of “Defaulting Lender”, or if any Lender refuses to consent to any amendment, waiver or other modification of any Loan Document requested by the Borrower that requires the consent of all Lenders directly affected thereby and such amendment, waiver or other modification is consented to by the Required Lenders, the Borrower may: (a) request one more of the other Lenders to acquire and assume all or part of such Lender’s Loans, Reimbursement Obligations and Revolving Credit Commitment; or (b) replace such Lender by designating another Lender or a financial institution that is willing to acquire such Loans and Reimbursement Obligations and assume such Revolving Credit Commitment; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default (other than, in the case of the replacement of a Defaulting Lender, as a result of the failure of the Borrower to satisfy its cash collateralization obligations pursuant to Section 2.31(a)(ii)) shall have occurred and be continuing at the time of such replacement, (iii) the Borrower shall repay (or the replacement bank or institution shall purchase, at par) all Loans and Reimbursement Obligations, accrued interest, fees and other amounts owing to such replaced Lender prior to the date of replacement (including all amounts then owing to such replaced Lender pursuant to Sections 2.17, 2.18 and 2.20 and, if applicable, the prepayment fee pursuant to Section 2.3(d) (with such assignment being deemed to be a voluntary prepayment for purposes of determining the applicability of Section 2.9, such amount to be payable by the Borrower)), (iv) the Borrower shall be liable to such replaced Lender under Section 2.19 if any SOFR Loan owing to such replaced Lender shall be prepaid (or purchased) other than on the last day of the Interest Period relating thereto, (v) the replacement bank or institution, if not already a Lender, shall be reasonably satisfactory to the Administrative Agent and the Issuing Lender, and (vi) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 9.6 (provided that the Borrower or replacement Lender shall be obligated to pay the registration and processing fee except in the case of a Defaulting Lender). Each of the Issuing Lender and each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of the Issuing Lender or such Lender, as the case may be, as assignor, any Assignment and Assumption necessary to effectuate any assignment of the Issuing Lender’s or such Lender’s interests hereunder in the circumstances contemplated by this Section 2.22. 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.

 

 

2.23          L/C Commitment(a)       . (a) Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the agreements of the other Revolving Credit Lenders set forth in Section 2.26(a), agrees to issue letters of credit (the letters of credit issued on and after the Closing Date, together with the Existing Letters of Credit, collectively, the “Letters of Credit”) for the account of the Borrower on any Business Day during the period commencing on the Closing Date and ending 30 days prior to the Revolving Credit Termination Date in such form as may be approved from time to time by such Issuing Lender; provided that no Issuing Lender shall have any obligation to issue any Letter of Credit, and no Revolving Credit Lender shall have any obligations to participate in any Letter of Credit, if, after giving effect to such issuance or participation, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the Available Revolving Credit Commitments would be less than zero; provided, further, that in no event shall Barclays, RBC, Bank of America, Credit Suisse, Deutsche Bank AG New York Branch, Bank of Montreal, Citizens, TD Securities or Rabobank, or any of their respective offices, branches or Affiliates, in each case to the extent that it is an Issuing Lender hereunder, be required to issue any trade Letter of Credit. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date which is five Business Days prior to the Revolving Credit Termination Date, provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above).

 

(b)            No Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunder if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law. Notwithstanding anything to the contrary contained in this Section 2.23 or elsewhere in this Agreement, in the event that a Revolving Credit Lender is a Defaulting Lender, the Issuing Lender shall not be required to issue any Letter of Credit unless such Defaulting Lender’s Revolving Credit Percentage of the L/C Obligations, after giving effect to the issuance of such Letter of Credit, may be reallocated among Non-Defaulting Lenders in accordance with Section 2.31(a)(iv) or, if such reallocation is not available in accordance with such Section, each Issuing Bank has entered into arrangements satisfactory to it and the Borrower to eliminate such Issuing Bank’s risk with respect to the participation in Letters of Credit by all such Defaulting Lenders, which may include by cash collateralizing each such Defaulting Lender’s Pro Rata Percentage of each Letter of Credit issued while such Defaulting Lender remains a Defaulting Lender.

 

2.24            Procedure for Issuance of Letter of Credit. The Borrower may from time to time request that an Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the reasonable satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender may reasonably request with respect to the requested Letter of Credit. Upon receipt of any Application, an Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall any Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower. Promptly after issuance by an Issuing Lender of a Letter of Credit, such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower. Each Issuing Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit issued by it (including the amount thereof).

 

  

2.25            Fees and Other Charges. (a) The Borrower will pay a fee on the aggregate drawable amount of all outstanding Letters of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Revolving Credit Loans that are SOFR Loans, shared ratably among the Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the issuance date. In addition, the Borrower shall pay to each Issuing Lender for its own account a fronting fee in an amount equal to 0.25% of the aggregate drawable amount of all outstanding Letters of Credit issued by it, payable quarterly in arrears on each L/C Fee Payment Date after the date of Issuance.

 

(b)            In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.

 

2.26            L/C Participations.  (a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce each Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from each Issuing Lender, on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving Credit Percentage in each Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by such Issuing Lender hereunder and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit by such Issuing Lender for which such Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving Credit Percentage of the amount of such draft, or any part thereof, that is not so reimbursed.

 

(b)            If any amount required to be paid by any L/C Participant to an Issuing Lender pursuant to Section 2.26(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 2.26(a) is not made available to such Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans under the Revolving Credit Facility. A certificate of such Issuing Lender submitted to any L/C Participant with respect to any such amounts owing under this Section shall be conclusive in the absence of manifest error.

 

  

(c)            Whenever, at any time after an Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 2.26(a), such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will distribute to such L/C Participant its pro rata share thereof; provided, however, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.

 

(d)            Each Revolving Credit Lender’s obligation to purchase, pursuant to Section 2.26(a), such Lender’s Revolving Credit Percentage in each Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by such Issuing Lender hereunder shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender or the Borrower may have against such Issuing Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 4; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Loan Party; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

2.27            Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse each Issuing Lender on each date on which such Issuing Lender notifies the Borrower of the date and amount of a draft presented under any Letter of Credit and paid by such Issuing Lender (but in any event no such reimbursement shall be required before the date on which Base Rate Loans would be made (or the procedure specified in Section 2.26 would become applicable) as described in the last two sentences of this Section) for the amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by such Issuing Lender in connection with such payment (the amounts described in the foregoing clauses (a) and (b) in respect of any drawing, collectively, the “Payment Amount”). Each such payment shall be made to such Issuing Lender at its address for notices specified herein in lawful money of the United States of America and in immediately available funds. Interest shall be payable on each Payment Amount from the date of the applicable drawing until payment in full at the rate set forth in (i) until the second Business Day following the date of the applicable drawing, Section 2.13(b) and (ii) thereafter, Section 2.13(c). Each drawing under any Letter of Credit shall (unless an event of the type described in clause (i) or (ii) of Section 7(f) shall have occurred and be continuing with respect to the Borrower, in which case the procedures specified in Section 2.26 for funding by L/C Participants shall apply) constitute a request by the Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5 of Base Rate Loans in the amount of such drawing. The Borrowing Date with respect to such borrowing shall be the first date on which a borrowing of Revolving Credit Loans could be made, pursuant to Section 2.5, if the Administrative Agent had received a notice of such borrowing at the time of such drawing under such Letter of Credit.

 

  

2.28            Obligations Absolute. The Borrower’s obligations under Sections 2.23 through 2.29 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any L/C Participant, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees that each Issuing Lender and the L/C Participant shall not be responsible for, and the Borrower’s Reimbursement Obligations under Section 2.27 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee. No Issuing Lender or L/C Participant shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or bad faith of such Issuing Lender. The Borrower agrees that any action taken or omitted by an Issuing Lender under or in connection with any Letter of Credit issued by it or the related drafts or documents, if done in the absence of gross negligence, willful misconduct or bad faith and in accordance with the standards of care specified in the Uniform Commercial Code of the State of New York, shall be binding on the Borrower and shall not result in any liability of such Issuing Lender or any L/C Participant to the Borrower.

 

2.29            Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the relevant Issuing Lender shall promptly notify the Borrower of the date and amount thereof. The responsibility of the relevant Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit issued by such Issuing Lender shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.

 

2.30            Applications. To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of Sections 2.23 through 2.29, the provisions of Sections 2.23 through 2.29 shall apply; provided, however, that any term, condition or provision of any Application which is in addition to, or the subject matter of which is not in, part of or covered by, the provisions of Sections 2.23 through 2.29 shall not be considered as being or deemed to be in conflict with or inconsistent with the provisions of Sections 2.23 through 2.29.

 

 

2.31            Defaulting Lenders. (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

  

(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.

 

(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 Section 7 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.7 shall be applied at 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 Issuing Lender hereunder; third, to cash collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.31(d); fourth, as the Borrower may request (so long as no Default or Event of 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 Issuing Lender’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 2.31(d); sixth, to the payment of any amounts owing to the Lenders or the Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing 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 Default or 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, so long as payment on account of any amount owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against the Defaulting Lender required to be paid under the seventh clause above has been made, 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 Disbursements 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 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Disbursements owed to, all Lenders that are not Defaulting Lenders (such Lenders, “Non-Defaulting Lenders”) on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time as all Loans and L/C Exposure are held by the Lenders pro rata in accordance with the Commitments under the applicable facility without giving effect to Section 2.31(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 2.31(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

  

(iii)          Certain Fees. (A) No Defaulting Lender shall be entitled to receive any Commitment Fee 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).

 

(A)            Each Defaulting Lender shall be entitled to receive L/C Participation Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Percentage of the stated amount of Letters of Credit for which it has provided cash collateral pursuant to Section 2.31(d).

 

(B)            With respect to any L/C Participation 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 obligation to fund participations in respect of Letters of Credit that have been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Lender the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee

 

(iv)          Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s obligation to fund participations in respect of Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 4.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Extensions of Credit of any Non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 9.24, 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)           Cash Collateral. If the reallocation described in clause (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 law, cash collateralize the Issuing Lender’s Fronting Exposure in accordance with the procedures set forth in Section  2.31(d).

  

(b)            Defaulting Lender Cure. If the Borrower, the Administrative Agent and the Issuing Lender 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 to be held pro rata by the Lenders in accordance with the Commitments under the applicable facility (without giving effect to Section 2.31(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; and provided, further, that if any amounts would be due to the Non-Defaulting Lenders under Section 2.19 as a result of a payment of a SOFR Loan, the Defaulting Lender shall pay such amounts to the Non-Defaulting Lenders entitled thereto.

 

(c)            New Letters of Credit. So long as any Lender is a Defaulting Lender, the Issuing Lender shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

 

(d)            Cash Collateral. (i)At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or the Issuing Lender (with a copy to the Administrative Agent) the Borrower shall cash collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.31(a)(iv) and any cash collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.

 

(ii)           The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Lender, and agrees to maintain, a first priority security interest in all such cash collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (b) below. If at any time the Administrative Agent determines that cash collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Lender as herein provided (other than Permitted Liens), or that the total amount of such cash collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional cash collateral in an amount sufficient to eliminate such deficiency (after giving effect to any cash collateral provided by the Defaulting Lender.

 

  

(iii)          Notwithstanding anything to the contrary contained in this Agreement, cash collateral provided under this Section 2.31 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (including, as to cash collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the cash collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

 

(iv)          Cash collateral (or the appropriate portion thereof) provided to reduce the Issuing Lender’s Fronting Exposure shall no longer be required to be held as cash collateral pursuant to this Section 2.31 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Issuing Lender that there exists excess cash collateral; provided that, subject to this Section 2.31 the Person providing cash collateral and the Issuing Lender may agree that cash collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided, further, that to the extent that such cash collateral was provided by the Borrower, such cash collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

 

2.32            Incremental Loans and Commitments.

 

(a)            The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice) (the “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche B-4 Term Loans or commitments to make term loans with terms different from the Tranche B-4 Term Loans, including, for the avoidance of doubt, tranche A term loans (such other term loans, the “Other Term Loans”).

 

 

(b)            The Borrower may seek Incremental Term Loan Commitments or Incremental Revolving Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche B-4 Term Loans shall be identical to those of the Tranche B-4 Term Loans on the Fourth Amendment Effective Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date (i) except for (x) pricing, fees, rate floors and prepayment or redemption premiums, which reflect market terms and conditions at the time of incurrence or issuance, (y) covenants or other provisions applicable only to periods after the Latest Maturity Date that is in effect on the date such Incremental Revolving Loans and Incremental Revolving Commitments are issued, incurred or obtained or which are added for the benefit of the Lenders, and (z) provisions that reflect the nature of such Incremental Revolving Loans as fixed or floating rate, and (ii) except as otherwise set forth herein or in the Incremental Assumption Agreement, and, for purposes of this clause (ii), and such other terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche B-4 Term Loans, as applicable, (i) except for (x) pricing, fees, rate floors and prepayment or redemption premiums, which reflect market terms and conditions at the time of incurrence or issuance, (y) covenants or other provisions applicable only to periods after the Latest Maturity Date that is in effect on the date such Other Term Loan is issued, incurred or obtained or which are added for the benefit of the Lenders, and (z) provisions that reflect the nature of such Other Term Loan as fixed or floating rate, and (ii) except as otherwise set forth herein or in the Incremental Assumption Agreement, and, for purposes of this clause (ii), any such other terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent of the Required Lenders:

  

(i)            except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,

 

(ii)           except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,

 

(iii)          the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,

 

 

(iv)          the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),

  

(v)            in connection with Other Term Loans that are incurred prior to the twenty four-month anniversary of the Third Amendment Effective Date and contain provisions customarily applicable to Tranche B term loans, if the initial All-In Yield of such Other Term Loans exceeds the All-In Yield for the Tranche B-4 Term Loans that are SOFR Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Tranche B-4 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; provided, further, that this clause (v) shall not apply to Other Term Loans that are incurred to finance, in whole or in part, a Transformative Acquisition, and

 

(vi)            with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the pricing of Other Term Loans may be subject to “most favored nations” provisions if and to the extent set forth in the Incremental Assumption Agreement for such tranche of Other Term Loans,

 

The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.

 

(c)            Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments to be incurred on such date are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (iii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.

 

  

(d)            Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each borrowing hereunder of outstanding Tranche B-4 Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of the Tranche B-4 Term Loans that are SOFR Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche B-4 Term Loans that are SOFR Loans on a pro rata basis. Any conversion of Tranche B-4 Term Loans that are SOFR Loans to Base Rate Loans required by the preceding sentence shall not be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche B-4 Term Loans that are SOFR Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Tranche B-4 Term Lenders were entitled before such recalculation.

 

(e)            The Loans and Commitments extended or established pursuant to this Section 2.32 shall constitute Loans and Commitments 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 Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.

 

 

(f)            On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.

 

Section 3. REPRESENTATIONS AND WARRANTIES

 

To induce the Agents, the Issuing Lender and the Lenders to enter into this Agreement and to make the Loans and to issue or participate in Letters of Credit, the Borrower hereby represents and warrants to each Agent, the Issuing Lender and each Lender that:

 

3.1            Financial Condition. (a) The unaudited pro forma consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at June 30, 2014 and related pro forma consolidated statements of income and cash flows of the Borrower and its consolidated Subsidiaries (collectively, the “Pro Forma Financial Statements”), copies of which have heretofore been furnished to each Lender, have been prepared giving effect (as if such events had occurred on such date) to (i) the Loans and other extensions of credit to be made hereunder on the Closing Date and the use of proceeds thereof and (ii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Financial Statements have been prepared based on the information available to the Borrower as of the date of delivery thereof, and presents fairly in all material respects on a pro forma basis the estimated financial condition of Borrower and its consolidated Subsidiaries as at June 30, 2014 (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), assuming that the events specified in the preceding sentence had actually occurred at such date.

 

(b)            The audited consolidated balance sheets of the Borrower as at December 31, 2011, December 29, 2012 and December 28, 2013, and the related consolidated statements of income and of cash flows for the fiscal years ended on such dates, reported on by and accompanied by an unqualified report from KPMG LLP, present fairly in all material respects the consolidated financial condition of the Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years then ended. The unaudited consolidated balance sheet of the Borrower as at May 1, 2014, and the related unaudited consolidated statements of income and cash flows for the 17-week period ended on such date, present fairly in all material respects the consolidated financial condition of Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the 17-week period then ended (subject to normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein and subject, in the case of any such unaudited financial statements to normal year-end audit adjustments and the absence of notes). The Borrower and its Subsidiaries do not have any material Guarantee Obligations, contingent liabilities and liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, including, without limitation, any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent financial statements referred to in this paragraph. During the period from March 31, 2014 to and including the Fourth Amendment Effective Date there has been no Disposition by the Borrower of any material part of its business or Property (other than any Disposition permitted by Section 6.5).

 

  

3.2            No Change. Since December 28, 2013, there has not been any event, change, condition or development that has had or could reasonably be expected to have a Material Adverse Effect.

 

3.3            Corporate Existence; Compliance with Law. Each of the Borrower and its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the corporate or business trust power and authority, and the legal right, to own and operate its Property, to lease the Property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or business trust and in good standing under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification and (d) is in compliance with all Requirements of Law except, in the case of each of the foregoing clauses (c) and (d), to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

3.4            Corporate Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate or business trust power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to consummate the Transactions and to borrow and obtain other extensions of credit hereunder. Each Loan Party has taken all necessary corporate action or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the borrowings and other extensions of credit on the terms and conditions of this Agreement and to grant the security interests and Liens as provided in the Loan Documents, and, in the case of each Subsidiary Guarantor, to guarantee the Obligations of the Borrower on the terms and conditions of the applicable Loan Documents and to grant the security interests and Liens as provided in the Loan Documents. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the consummation of the Transactions, the borrowings and other extensions of credit hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the other Loan Documents, except (i) consents, authorizations, filings and notices described in Schedule 3.4, which consents, authorizations, filings and notices have been obtained or made and are in full force and effect, (ii) the filings referred to in Section 3.19 and (iii) consents, notices and filings which the failure to make or obtain could not reasonably be expected to have a Material Adverse Effect. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

 

  

3.5            No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents, the consummation of the Transactions, the issuance of Letters of Credit, borrowings hereunder and the use of the proceeds thereof will not violate any Requirement of Law or any Contractual Obligation of the Borrower or any of its Subsidiaries and will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents). No Requirement of Law or Contractual Obligation applicable on the Restatement to the Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.

 

3.6            No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge the Borrower, threatened by or against the Borrower or any of its Subsidiaries or against any of their respective properties or revenues (a) with respect to this Agreement or any other Loan Document or the Transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect.

 

3.7            No Default. Neither the Borrower nor any of its Subsidiaries is in default under or with respect to any of its Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.

 

3.8            Ownership of Property; Liens. Each of the Borrower and each of its Subsidiaries has title in fee simple to, or a valid leasehold interest in, all its real property, subject only to Liens and other matters permitted by Section 6.3, and good title to, or a valid leasehold or other property interest in, all its other Property, and none of such Property is subject to any Lien except as permitted by Section 6.3.

 

3.9            Intellectual Property. To the knowledge of the Borrower, the Borrower and each of its Subsidiaries owns, or is licensed to use, all Intellectual Property necessary and material for the conduct of its business as currently conducted. To the knowledge of the Borrower, except as indicated on Schedule 3.9, no material claim has been asserted and is pending by any Person alleging that the use of any Intellectual Property by the Borrower and its Subsidiaries infringes on the intellectual property rights of any Person in any material respect nor does the Borrower know of any valid basis for any such claim.

 

3.10            Taxes. Each of the Borrower and each of its Subsidiaries has timely filed or caused to be filed all Federal, state and other material tax returns that are required to be filed (all such Tax returns being true and correct in all material respects) and has timely paid all Taxes payable, collectible or remittable by it and any assessments made against it or any of its Property and all other material Taxes, fees or other charges imposed on it or any of its Property by any Governmental Authority (other than any the amount or validity of which are either currently being contested in good faith by appropriate proceedings or with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or its Subsidiaries, as the case may be); and as of the Restatement Effective Date no Tax Lien has been filed, and, to the knowledge of the Borrower, no claim is being asserted, with respect to any such Tax, fee or other charge.

 

  

3.11            Federal Regulations. No part of the proceeds of any Loans and no Letters of Credit will be used for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect or for any purpose that violates the provisions of the Regulations of the Board. If requested by any Lender, the Issuing Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent, the Issuing Lender and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.

 

3.12            Labor Matters. There are no strikes or other labor disputes against the Borrower or any of its Subsidiaries pending or, to the knowledge of the Borrower, threatened that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees of the Borrower and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect. All payments due from the Borrower or any of its Subsidiaries on account of employee health and welfare insurance that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect if not paid have been paid or accrued as a liability on the books of the Borrower or the relevant Subsidiary.

 

3.13            ERISA. Each of the Borrower and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No material liability to the PBGC (other than required premium payments), or, except in the ordinary course, any Plan or any trust established thereunder, has been or is expected to be incurred by the Borrower or any of its ERISA Affiliates with respect to any Plan. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, resulted or could reasonably be expected to result, in material liability of the Borrower or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual valuation date applicable thereto, exceed by more than $10,000,000 the fair market value of the assets of such Plan. None of the Borrower nor any Subsidiary has any material liability with respect to any Foreign Pension Plan.

 

3.14            Investment Company Act; Other Regulations. No Loan Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board) which limits its ability to incur Indebtedness.

 

3.15            Subsidiaries. (a) The Subsidiaries listed on Schedule 3.15 constitute all the Subsidiaries of the Borrower as of the Restatement Effective Date. Schedule 3.15 sets forth as of the Restatement Effective Date the name and jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party.

 

  

(b)            As of the Restatement Effective Date, no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options, equity compensation awards granted to employees or directors and directors’ qualifying shares) of any nature relating to any Capital Stock of the Borrower or any Subsidiary.

 

3.16            Use of Proceeds. The proceeds of the Tranche B-4 Term Loans shall be used by the Borrower on the Third Amendment Effective Date to refinance the Existing Senior Notes Due 2021, pay certain outstanding Revolving Credit Loans under this Agreement and to pay certain fees and expenses in connection with the foregoing. The proceeds of the Fourth Amendment Incremental Term Loans shall be used by the Borrower on the Fourth Amendment Effective Date to pay certain outstanding Revolving Credit Loans under this Agreement and to pay certain fees and expenses in connection with the foregoing. The proceeds of the Revolving Credit Loans and the Incremental Revolving Loans shall be used by the Borrower solely for general corporate purposes (including Permitted Acquisitions) and as working capital. The Letters of Credit shall be used by the Borrower solely for general corporate purposes. The proceeds of the Incremental Term Loans shall be used by the Borrower solely for general corporate purposes (including Permitted Acquisitions).

 

3.17            Environmental Matters. Other than exceptions to any of the following that could not, individually and in the aggregate, reasonably be expected to have a Material Adverse Effect:

 

(a)            the Borrower and its Subsidiaries: (i) are, and within the period of all applicable statutes of limitation have been, in compliance with all applicable Environmental Laws; (ii) hold all Environmental Permits (each of which is in full force and effect) required for any of their current operations or for any property owned, leased, or otherwise operated by any of them; (iii) are, and within the period of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; and (iv) reasonably believe that: each of their Environmental Permits will be timely renewed and complied with; any additional Environmental Permits that may be required of any of them will be timely obtained and complied with; and compliance with any Environmental Law that is or is expected to become applicable to any of them will be timely attained and maintained.

 

(b)            Materials of Environmental Concern are not present at, on, under, in, or about any real property now or, to the knowledge of the Borrower and its Subsidiaries, formerly owned, leased or operated by the Borrower or any of its Subsidiaries, or, to the knowledge of the Borrower and its Subsidiaries, at any other location (including, without limitation, any location to which Materials of Environmental Concern have been sent for re-use or recycling or for treatment, storage, or disposal) which could reasonably be expected to (i) give rise to liability of the Borrower or any of its Subsidiaries under any applicable Environmental Law or otherwise result in costs to the Borrower or any of its Subsidiaries, or (ii) interfere with the Borrower’s or any of its Subsidiaries’ continued operations.

 

 

(c)            There is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under or relating to any Environmental Law to which the Borrower or any of its Subsidiaries is, or to the knowledge of the Borrower or any of its Subsidiaries will be, named as a party that is pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened.

  

(d)            Neither the Borrower nor any of its Subsidiaries has received any written request for information, or been notified that it is a potentially responsible party under or relating to the federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar Environmental Law, or with respect to any Materials of Environmental Concern.

 

(e)            Neither the Borrower nor any of its Subsidiaries has entered into or agreed to any consent decree, order, or settlement or other agreement, or is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum for dispute resolution, relating to compliance with or liability under any Environmental Law.

 

(f)            Neither the Borrower nor any of its Subsidiaries has assumed or retained, by contract, any liabilities of any kind, fixed or contingent, known or unknown, under any Environmental Law or with respect to any Material of Environmental Concern.

 

3.18            Accuracy of Information, etc. No written statement or written information (other than projections, other forward-looking information, information of a general economic or general industry nature and pro forma financial information) contained in this Agreement, any other Loan Document, the Confidential Information Memorandum or any other document, certificate or written statement furnished to the Agents, the Arrangers, the Issuing Lender or the Lenders or any of them, by or on behalf of any Loan Party for use in connection with the transactions contemplated by or pursuant to this Agreement or the other Loan Documents, taken as a whole, contained as of the date such statement, information, document or certificate was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which such statements were made. The projections, other forward-looking information with respect to the Borrower and its Subsidiaries and the pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such projections and pro forma financial information as it relates to future events are not to be viewed as fact and that actual results during the period or periods covered by such projections, other forward-looking information and pro forma financial information may differ from the projected and pro forma results set forth therein by a material amount.

 

 

3.19            Security Documents. The Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the Pledged Stock described in the Guarantee and Collateral Agreement, when any stock certificates representing such Pledged Stock are delivered to the Administrative Agent together with stock powers endorsed to the Collateral Agent or in blank, and in the case of the other Collateral described in the Guarantee and Collateral Agreement, when financing statements in appropriate form are filed in the offices specified on Schedule 3.19(a)-1 as of the Closing Date, (which financing statements have been duly completed and delivered to the Collateral Agent) and such other filings as are specified on Schedule 3 to the Guarantee and Collateral Agreement (all of which filings have been duly completed), the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Secured Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 6.3). Schedule 3.19(a)-2 lists each UCC Financing Statement (other than any naming the Collateral Agent as secured party) that (i) names any Loan Party as debtor and (ii) will remain on file after the Closing Date.

  

3.20            Solvency. The Borrower and its Subsidiaries, on a consolidated basis, are, and immediately after the consummation of the Acquisition and the other Transactions to occur on the Restatement Funding Date and immediately following the making of each Loan or other extension of credit hereunder and after giving effect to the application of the proceeds of each Loan or other extension of credit hereunder, will be and will continue to be, Solvent.

 

3.21            Anti-Terrorism Laws; Sanctions; Anti-Corruption Laws.

 

(a)            To the extent applicable, each Loan Party is in compliance, in all material respects, with the (i) Trading with the Enemy Act, and each of the Anti-Terrorism Laws, (ii) the Anti-Corruption Laws and (iii) applicable Sanctions.

 

(b)            None of the Loan Parties nor any of their respective Subsidiaries nor, to the knowledge of the Borrower, any director, officer, agent, employee or Affiliate of any of the Loan Parties or any of their respective Subsidiaries, is a Sanctioned Person that is, or is owned or controlled by Sanctioned Persons or are located, organized or resident in a Sanctioned Country. The Loan Parties will not directly or indirectly use the proceeds of the Loans or the Letters of Credit or otherwise make available such proceeds to (i) any Sanctioned Person or whose government is a Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any person participating in the Loans, whether as underwriter, advisor, investor, or otherwise).

 

(c)            No part of the proceeds of the Loans will be used by the Borrower or any of its Subsidiaries, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the Anti-Corruption Laws.

 

3.22            EEA Financial Institutions. The Borrower is not an EEA Financial Institution.

 

Section 4. CONDITIONS PRECEDENT

 

4.1            Conditions to Restatement Funding Date. The agreement of each Lender to make its extension of credit on the Restatement Funding Date is subject to the satisfaction, prior to or concurrently with the making of any extensions of credit on the Restatement Funding Date, of the following conditions precedent:

 

 

(a)            Loan Documents. The Administrative Agent shall have received (i) the Amendment Agreement, executed and delivered by a duly authorized officer of the Borrower, (ii) this Agreement, executed and delivered by a duly authorized officer of the Borrower, (iii) a Reaffirmation Agreement, executed and delivered by a duly authorized officer of the Borrower and each Subsidiary Guarantor and (v) each Note signed by the Borrower (to the extent requested prior to the Closing Date).

  

(b)            Financial Statements and Pro Forma Financial Statements. The Administrative Agent shall have received (i) unaudited income statements for the Acquired Business for each of Seller’s fiscal years ended May 31, 2015, May 25, 2014 and May 26, 2013 (each in local currency), (ii) an unaudited statement of Inventory owned by Seller or any of the Seller Parties (as defined in the Acquisition Agreement) that is used or held for use exclusively in the operation or conduct of the Acquired Business at May 31, 2015, (iii) a pro forma consolidated balance sheet and related pro forma consolidated statements of income and cash flows of the Borrower as of and for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered by Borrower pursuant to Section 5.1, prepared after giving effect to the Transactions and any other transactions for which pro forma effect may be given under Section 1.3 as if the Transactions and other transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), (iv) at least 20 calendar days prior to the Restatement Funding Date, an unaudited Statement of Inventory and an unaudited Statement of Profit Before Overheads for any interim period or periods of the Acquired Business ended after the date of the most recent unaudited Statement of Inventory and unaudited Statement of Profit Before Overheads; which, in each case, shall be in a form consistent with the forecasts previously provided to the Administrative Agent and (v) with respect to the Borrower, each of the financial statements required to be furnished to the Administrative Agent under Section 5.1.

 

(c)            No Indebtedness. After giving effect to the Transactions to occur on the Restatement Funding Date, the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred Capital Stock other than (A) the Loans and other extensions of credit hereunder, (B) the Senior Notes, and (C) the other Indebtedness permitted to be incurred pursuant to Section 6.2.

 

(d)            Representations and Warranties. The (i) Specified Acquisition Agreement Representations shall be true and correct as required by the terms of the definition thereof and (ii) the Specified Representations shall be true and correct in all material respects; provided that in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be.

 

(e)            Fees and Expenses. The Arrangers and the Agents shall have received all fees and other compensation required to be paid (including pursuant to any engagement or fee letters entered into between the Borrower and any Arranger or Agent on or prior to the Restatement Funding Date), and all costs and expenses payable hereunder or under any other Loan Document for which invoices have been presented (including reasonable fees, disbursements and other charges of counsel to the Arrangers and the Agents), on or before the Restatement Funding Date.

 

 

(f)            Lien Searches. The Administrative Agent shall have received the results of a recent lien search in each relevant jurisdiction with respect to the Borrower and its Subsidiaries, and such search shall reveal no liens on any of the assets of the Borrower or its Subsidiaries except for liens permitted by Section 6.3 or liens to be discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent.

  

(g)            Restatement Funding Date Certificate. The Administrative Agent and the Arrangers shall have received a certificate of each Loan Party, dated the Restatement Funding Date, substantially in the form of Exhibit C, with appropriate insertions and attachments.

 

(h)            Legal Opinion. The Administrative Agent and the Arrangers shall have received the legal opinion of Dechert LLP, counsel to the Borrower and its Subsidiaries, substantially in the form of Exhibit E.

 

(i)            Filings, Registrations and Recordings. Each document (including, without limitation, any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent or the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens and other matters expressly permitted by Section 6.3), shall be in proper form for filing, registration or recordation.

 

(j)            Solvency. The Administrative Agent and the Arrangers shall have received a certificate executed by the chief financial officer of the Borrower, in the form attached as Exhibit H hereto, which shall document the solvency of the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the Transactions contemplated hereby.

 

(k)            Pledged Stock; Stock Powers. The Collateral Agent shall have received the certificates representing the shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof.

 

(l)            Transactions. Substantially concurrently with the initial funding of the Tranche B Term Loans, the Acquisition shall have been consummated in accordance with the terms of the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is materially adverse to the Lenders, the Arrangers, the Co-Syndication Agents or the Co-Documentation Agents without the prior written consent of the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that any decrease in the purchase price in excess of 10% shall be deemed to be a modification which is materially adverse to the Lenders and the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents)).

 

(m)            Closing Date Material Adverse Effect. Except as otherwise contemplated by the Acquisition Agreement, since the date of the Acquisition Agreement, there has been no development, change, event or occurrence that, individually or in the aggregate, has had, or is reasonably likely to have, an Acquired Business Material Adverse Effect.

 

 

(n)            USA PATRIOT Act. No later than five (5) Business Days in advance of the Restatement Funding Date (to the extent requested at least ten (10) days prior to the Restatement Funding Date), the Administrative Agent shall have received, on behalf of the Arrangers and Lenders, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.

  

(o)            Agency Fee Letter. The Administrative Agent and the Borrower shall have entered into a fee letter in connection with the fees to be paid to the Administrative Agent in connection with such capacity.

 

4.2            Conditions to Each Extension of Credit. The agreement of each Lender to make any extension of credit requested to be made by it on any date (including, without limitation, its initial extension of credit) is subject to the satisfaction of the following conditions precedent:

 

(a)            Representations and Warranties. Each of the representations and warranties made by any Loan Party in or pursuant to this Agreement or any other Loan Document shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects) on and as of such date as if made on and as of such date (unless stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall have been true and correct in all respects) as of such earlier date); provided that, if such extension of credit is an Incremental Term Borrowing or Incremental Revolving Loan used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the date of the applicable Incremental Term Borrowing or applicable Incremental Revolving Loan shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement.

 

(b)            No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the making of the extensions of credit requested to be made on such date; provided that if the Lenders providing an Incremental Term Loan or Incremental Revolving Loan to finance a Permitted Acquisition have agreed to a “funds certain” provision, then no Default or Event of Default shall have occurred and be continuing under Section 7(a) or (f).

 

(c)            Borrowing Request. The Administrative Agent shall have received a notice of borrowing as and when required by Sections 2.2 and/or Section 2.5, as applicable, which notice shall (i) confirm compliance with clauses (a) and (b) of this Section 4.2 and (ii) set forth all information required by Section 2.2 and/or Section 2.5, as applicable.

 

 

Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of such extension of credit that the conditions contained in this Section 4.2 have been satisfied.

  

Section 5. AFFIRMATIVE COVENANTS

 

The Borrower hereby agrees that, so long as the Revolving Credit Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender, the Issuing Lender or any Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to:

 

5.1            Financial Statements. Furnish to the Administrative Agent (who will furnish such information to the Lenders):

 

(a)            as soon as available, but in any event within 90 days (or such earlier date as required by the SEC) after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in comparative form the figures as of the end of the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by KPMG, L.L.P. or other independent certified public accountants of nationally recognized standing; and

 

(b)            as soon as available, but in any event not later than 45 days (or such earlier date as required by the SEC) after the end of each of the first three quarterly periods of each fiscal year of the Borrower, the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures as of the end of and for the corresponding period in the previous year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments);

 

all such financial statements to be complete and correct in all material respects and to be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein).

 

5.2            Certificates; Other Information. Furnish to the Administrative Agent and each Lender (other than any Excluded Lenders), or, in the case of clause (e), to the relevant Lender:

 

(a)            concurrently with the delivery of any financial statements pursuant to Section 5.1, (i) a certificate of a Responsible Officer stating that, to such Responsible Officer’s knowledge, each Loan Party during such period has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Loan Documents to which it is a party to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) in the case of quarterly or annual financial statements, (A) a Compliance Certificate containing all information and calculations necessary for determining compliance by the Borrower and its Subsidiaries with the provisions of this Agreement referred to therein as of the last day of the Fiscal Quarter or fiscal year of the Borrower, as the case may be, which Compliance Certificate shall, in connection with each delivery of financial statements pursuant to Section 5.1(a), (y) in the case of annual financial statements, show in reasonable detail the calculations used in determining Excess Cash Flow for the most recently completed fiscal year of the Borrower and (z) if the Available Amount was applied during such period, show the Available Amount as of the end of such period, and (B) to the extent not previously disclosed to the Administrative Agent, a listing of any material Intellectual Property acquired by any Loan Party since the date of the most recent list delivered pursuant to this clause (B);

 

  

(b)            as soon as available, and in any event no later than 90 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, and the related consolidated statements of projected cash flow, projected changes in financial position and projected income) (collectively, the “Projections”);

 

(c)            within five days after the same are sent, copies of all financial statements and reports that the Borrower sends to the holders of any class of its debt securities or public equity securities and, within five days after the same are filed, copies of all financial statements and reports that the Borrower may make to, or file with, the SEC;

 

(d)            as soon as possible and in any event within five days of obtaining knowledge thereof: (i)  a description of any development, event, or condition that, individually or in the aggregate with other developments, events or conditions, could reasonably be expected to result in the payment by the Borrower and its Subsidiaries, in the aggregate, of a Material Environmental Amount; and (ii) any notice that any Governmental Authority may deny any application for an Environmental Permit sought by, or revoke or refuse to renew any Environmental Permit held by, any Loan Party which could reasonably be expected to have a Material Adverse Effect; and

 

(e)            promptly, such additional financial and other information as any Lender (other than any Excluded Lender) may from time to time reasonably request.

 

5.3            Payment of Obligations. Pay and discharge promptly when due all material Taxes, assessments and governmental charges or levies imposed upon it or in respect of its income, profits or property, before the same shall become delinquent or in default, and pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all other material obligations of whatever nature, except, in each case, where (a) the amount or validity thereof is currently being contested in good faith by appropriate proceedings, (b) such contest effectively suspends the enforcement of any Lien on the Borrower’s Property securing such obligations and (c) reserves in conformity with GAAP with respect thereto have been provided on the books of the Borrower or its Subsidiaries, as the case may be.

 

5.4            Conduct of Business and Maintenance of Existence, etc. (a)  (i)  Preserve, renew and keep in full force and effect its corporate existence and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business, except, in each case, as otherwise permitted by Section 6.4 and except, in the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

  

5.5            Maintenance of Property; Insurance. (a) Keep all Property and systems useful and necessary in its business in good working order and condition, ordinary wear and tear excepted and (b) maintain with financially sound and reputable insurance companies insurance on all its Property in at least such amounts and against at least such risks (but including in any event public liability, product liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business.

 

5.6            Inspection of Property; Books and Records; Discussions. (a) Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities and (b) permit representatives of any Agent or any Lender accompanying any Agent upon reasonable notice to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time during normal business hours and upon reasonable advance notice and as often as may reasonably be desired and to discuss the business, operations, properties and financial and other condition of the Borrower and its Subsidiaries with officers and employees of the Borrower and its Subsidiaries and with its independent certified public accountants (with reasonable notice to the chief financial officer of the Borrower (provided that the Borrower or such Subsidiaries may, at their option, have one or more employees or representatives present at any discussion with any such accountants)); provided that, absent the existence of an Event of Default, inspections pursuant to this Section 5.6 shall be limited to one time per fiscal year.

 

5.7            Notices. Promptly, and in any event within five Business Days of obtaining knowledge thereof, give notice to each Agent and each Lender of:

 

(a)            the occurrence of any Default or Event of Default;

 

(b)            any (i) default or event of default under any Contractual Obligation of the Borrower or any of its Subsidiaries or (ii) litigation, investigation or proceeding which may exist at any time between the Borrower or any of its Subsidiaries and any Governmental Authority that, in either case, could reasonably be expected to have a Material Adverse Effect;

 

(c)            any litigation or proceeding affecting the Borrower or any of its Subsidiaries in which the amount involved is $10,000,000 or more and not covered by insurance or in which injunctive or similar relief is sought;

 

(d)            the occurrence of any ERISA Event or Foreign Benefit Event that, alone or together with any other ERISA Events or Foreign Benefit Events that have occurred, resulted or could reasonably be expected to result, in liability of the Borrower and the Subsidiaries in an aggregate amount exceeding $10,000,000;

 

(e)            any amendment or other modification of any of the documents described in Section 6.9(b) or (c); and

 

 

(f)            any development or event that has had or could reasonably be expected to have a Material Adverse Effect.

  

Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Borrower or the relevant Subsidiary proposes to take with respect thereto.

 

5.8            Environmental Laws. (a) Comply in all material respects with, and ensure compliance in all material respects by all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply in all material respects with and maintain, and ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws.

 

(b)            Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws, or contest such orders and directives by appropriate legal means.

 

5.9            Additional Collateral, etc. (a) With respect to any Property acquired after the Closing Date by the Borrower or any of its Subsidiaries (other than (v) any real property (or interest therein), (w) any Intellectual Property to the extent creation of a security interest therein would be contractually prohibited (other than to the extent that any such prohibition would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or any other applicable law or principles of equity), (x) any Property described in paragraph (b) of this Section, (y) any Property subject to a Lien expressly permitted by Section 6.3(g) and (z) Property acquired by a Foreign Subsidiary) as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent or the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such Property and (ii) take all actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such Property (subject to Liens permitted by Section 6.3), including without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent.

 

 

(b)            With respect to any new Subsidiary of the Borrower (other than a Foreign Subsidiary or a Foreign Subsidiary Holding Company) created or acquired after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary that ceases to be a Foreign Subsidiary or a Foreign Subsidiary Holding Company), by the Borrower or any of its Subsidiaries, promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent or the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary (subject to Liens and other matters permitted by Section 6.3 and excluding real property and any interests therein, and Intellectual Property to the extent creation of a security interest therein would be contractually prohibited), including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent, and (iv) if reasonably requested by the Administrative Agent or the Collateral Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions covering matters consistent with those covered by the opinions delivered by Dechert LLP or the applicable local counsel, as the case may be, on the Closing Date relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent and the Collateral Agent.

  

(c)            With respect to any new Foreign Subsidiary and Foreign Subsidiary Holding Company created or acquired after the Closing Date by the Borrower or any of its Domestic Subsidiaries, promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent or the Collateral Agent deems necessary or advisable in order to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is directly owned by the Borrower or any of its Domestic Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Foreign Subsidiary or Foreign Subsidiary Holding Company be required to be so pledged (it being understood and agreed that 100% of the total non-voting Capital Stock of any such Subsidiary shall be required to be pledged)), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent or the Collateral Agent, desirable to perfect the Lien of the Collateral Agent thereon, and (iii) if requested by the Administrative Agent or the Collateral Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent and the Collateral Agent.

 

(d)            Notwithstanding the foregoing, the requirements of this Section 5.9 shall not apply to, and the Collateral shall exclude, those assets as to which the Collateral Agent reasonably determines that the costs (time, expense or otherwise) of obtaining a security interest in or Lien upon such assets are excessive in relation to the benefits to the Secured Parties of the security afforded thereby.

 

 

5.10            Further Assurances. From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as the Administrative Agent or the Collateral Agent may reasonably request, for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully perfecting or renewing the rights of the Agents, the Issuing Lender and the Lenders with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by the Borrower or any Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by any Agent, the Issuing Lender or any Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording, qualification or authorization of any Governmental Authority, the Borrower will execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that such Agent, the Issuing Lender or such Lender may be required to obtain from the Borrower or any of its Subsidiaries for such governmental consent, approval, recording, qualification or authorization.

  

5.11            Ratings. Use commercially reasonable efforts to (a) cause the Facilities to be continuously rated by S&P and Moody’s and (b) maintain a corporate rating from S&P and a corporate family rating from Moody’s, in each case in respect of the Borrower.

 

5.12            Use of Proceeds. Use the proceeds of the Loans and request the issuance of Letters of Credit only for the purposes specified in Section 3.16. The Borrower will not request any extension of credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any extension of credit hereunder (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

 

5.13            Beneficial Ownership Regulation. Notify the Administrative Agent and each Lender if the Borrower ceases to fall within an express exclusion to the definition of “legal entity customer” under the Beneficial Ownership Regulation. The Borrower will, promptly following any request therefor, deliver information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with the Beneficial Ownership Regulation.

 

 

Section 6. NEGATIVE COVENANTS

 

The Borrower hereby agrees that, so long as the Revolving Credit Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender, the Issuing Agent or any Agent hereunder, the Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:

  

6.1            Financial Condition Covenants.

 

(a)            Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the last day of any Test Period below to exceed the following:

 

Test Periods Ending on or about	Consolidated Leverage Ratio
June 30, 2022	7.50 to 1.00
September 30, 2022	8.00 to 1.00
December 31, 2022	8.00 to 1.00
March 31, 2023	8.00 to 1.00
June 30, 2023	8.00 to 1.00
September 30, 2023	8.00 to 1.00
December 31, 2023	7.50 to 1.00
March 31, 2024 and thereafter	7.00 to 1.00

  

(b)            Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as at the last day of any period of four consecutive Fiscal Quarters ending with any Fiscal Quarter, commencing with the Fiscal Quarter ending on or around June 30, 2014, to be less than 1.75 to 1.00.

 

Notwithstanding the provisions set forth in Section 9.1, the provisions of this Section 6.1 and the definitions of Consolidated Leverage Ratio and Consolidated Interest Coverage Ratio (and, in each case, the component definitions therein) solely for purposes of this Section 6.1 may be amended, waived or otherwise modified solely with the written consent of the Majority Facility Lenders of the Revolving Credit Facility.

 

6.2            Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:

 

(a)            Indebtedness of any Loan Party pursuant to any Loan Document;

 

(b)            Indebtedness of (i) the Borrower to any Subsidiary, (ii) any Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) any Subsidiary that is not a Subsidiary Guarantor to the Borrower or any Subsidiary Guarantor in an amount not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets outstanding at any one time, and (iv) any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;

 

(c)            Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g); provided that the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness permitted by Section 6.2(h), shall not at any time exceed $40,000,000 outstanding;

 

(d)            Indebtedness outstanding on the Closing Date and listed on Schedule 6.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof, except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);

 

 

(e)            Guarantee Obligations made in the ordinary course of business by (i) the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor, (ii) the Borrower or any of its Subsidiaries of obligations of any Subsidiary that is not a Subsidiary Guarantor in an amount not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets outstanding at any time and (iii) any Subsidiary that is not a Subsidiary Guarantor of the obligations of any other Subsidiary that is not a Subsidiary Guarantor;

  

(f)            (i)  Indebtedness of the Borrower in respect of the Senior Notes and the New Senior Notes, (ii) Guarantee Obligations of any Subsidiary Guarantor in respect of such Indebtedness, (iii) Indebtedness of the Borrower that refinances the Senior Notes, the New Senior Notes and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the Latest Maturity Date, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Borrower and the Subsidiary Guarantors than the terms of the Senior Notes or the New Senior Notes and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of Senior Notes or New Senior Notes, as applicable, refinanced thereby except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith and (iv) Indebtedness of the Borrower that refinances Indebtedness incurred in accordance with clause (iii) above and this clause (iv) and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the maturity date of such Indebtedness incurred in accordance with clause (iii) above, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Borrower and the Subsidiary Guarantors than the terms of such Indebtedness incurred in accordance with clause (iii) above and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness incurred in accordance with clause (iii) above, except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith;

 

(g)            Indebtedness of the Borrower or its Subsidiaries incurred to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person engaged in, or assets used or useful in, a business permitted pursuant to Section 6.15; provided that (i) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (ii) both immediately prior and after giving effect to the incurrence thereof, no Default or Event of Default shall exist or would result therefrom, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.1 after giving effect to such incurrence of Indebtedness (determined on the assumption that such incurrence of Indebtedness had occurred on the first day of the relevant period measured by such covenants), (iv) such Indebtedness is not also incurred by or guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors and is not incurred by or guaranteed by any other Person and (v) if such Indebtedness is secured, (A) such Indebtedness is secured by the Collateral (or a portion thereof) on a second lien, subordinated basis to the Obligations and is not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral (or a portion thereof), (B) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent; provided that such differences are not more favorable to the investors in such secured Indebtedness) and (C) an agent or representative acting on behalf of the holders of such Indebtedness shall have executed and delivered the Second Lien Intercreditor Agreement or an accession thereto in form and substance satisfactory to the Administrative Agent;

 

  

(h)            Indebtedness secured by Liens permitted by Section 6.3(l); provided that the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness permitted by Section 6.2(c), shall not at any time exceed $40,000,000 outstanding;

 

(i)            Indebtedness of the Borrower or its Subsidiaries arising from the honoring by a bank or other financing institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;

 

(j)            Indebtedness of the Borrower or its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or a Subsidiary, other than the guaranties of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided, however, that: (i) such Indebtedness is not reflected on the balance sheet of the Borrower or any of its Subsidiaries (contingent obligations referred to in a footnote to financing statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (i)) and (ii) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrower and its Subsidiaries in connection with such disposition;

 

(k)            subordinated Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $5,000,000 issued to directors, officers or employees of the Borrower or any of its Subsidiaries in connection with the redemption or purchase of Capital Stock that is not secured by any assets of the Borrower or any of its Subsidiaries, does not require cash payments prior to the stated maturity of the Senior Notes or the New Senior Notes and contains subordination terms reasonably acceptable to the Administrative Agent;

 

(l)            Indebtedness of the Borrower consisting of outstanding Permitted Foreign Currency Letters of Credit, the Dollar Equivalent of which shall not exceed $20,000,000 in aggregate principal amount as of the most recent Calculation Date;

 

(m)            Credit Agreement Refinancing Indebtedness;

 

(n)            other Indebtedness, not included in clauses (a) through (m) above, not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets in an aggregate principal amount (or accreted value, as applicable) at any time outstanding; and

 

(o)            Indebtedness in respect of overdraft facilities, automatic clearinghouse arrangements, employee credit card programs, corporate cards and purchasing cards, and other business cash management arrangements in the ordinary course of business, including Indebtedness arising under or in connection with any Cash Management Agreement with a Cash Management Bank.; and

 

  

(p)            (i)  Indebtedness of the Borrower in an aggregate principal amount not to exceed an amount so long as the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Indebtedness and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (x) any incremental revolving commitments to be incurred on such date are fully drawn and (y) without netting the cash proceeds of any such Indebtedness incurred on such date (the “Incremental Equivalent Indebtedness”); provided that, (A) if such Incremental Equivalent Indebtedness is secured, such Incremental Equivalent Indebtedness is secured by the Collateral (or a portion thereof) on a pari passu basis to the Obligations and is not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral (or a portion thereof), (B) such Incremental Equivalent Indebtedness shall not be guaranteed by any person other than the Subsidiary Guarantors, (C) the maturity date of such Incremental Equivalent Indebtedness shall be no earlier than the Latest Maturity Date, (D) such Incremental Equivalent Indebtedness shall have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity, (E) such Incremental Equivalent Indebtedness shall not receive mandatory prepayments in excess of its ratable share in accordance with Section 2.10(d), (F) the other terms and conditions of such secured Incremental Equivalent Indebtedness are on the whole substantially identical to, or not materially more favorable to the investors providing such secured Incremental Equivalent Indebtedness, than those applicable to the Facilities (except for (w) pricing, fees, rate floors and prepayment or redemption premiums, which shall reflect market terms and conditions at the time of incurrence or issuance, (x) covenants or other provisions applicable only to periods after the Latest Maturity Date that is in effect on the date such Incremental Equivalent Indebtedness is issued, incurred or obtained or which are added for the benefit of the Lenders and (y) differences that reflect the nature of such secured debt as fixed or floating rate securities), (G) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent and the Borrower; provided that such differences are not materially more favorable to the investors in such secured Indebtedness), (H) if such Indebtedness is secured on a pari passu basis with the Obligations, an agent or representative acting on behalf of the holders of such Incremental Equivalent Indebtedness shall have become party to an intercreditor agreement in form and substance satisfactory to the Administrative Agent and the Borrower (a “Pari Passu Intercreditor Agreement”), and (I) no Default or Event of Default shall have occurred and be continuing at the time of incurrence of such Incremental Equivalent Indebtedness or would result therefrom (provided that, if such extension of credit is used to finance a Permitted Acquisition, then no Default or Event of Default shall have occurred and be continuing under Section 7(a) or (f)); and (ii) Guarantee Obligations of any Subsidiary Guarantor in respect of such Incremental Equivalent Indebtedness.

 

 

6.3            Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon any of its Property, whether now owned or hereafter acquired, except for:

  

(a)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

 

(b)            Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or that are being contested in good faith by appropriate proceedings;

 

(c)            Liens (other than any Lien imposed by ERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance, and other types of social security;

 

(d)            Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds, deposits to secure the performance of bids, trade contracts, government contracts, warranty requirements, leases or licenses or other obligations of a like nature or incurred in the ordinary course of business (including, without limitation, landlord Liens on leased real property);

 

(e)            survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

(f)             Liens in existence on the Closing Date listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that no such Lien shall at any time encumber any additional Property after the Closing Date and that the amount of Indebtedness secured thereby shall not be increased (except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);

 

(g)            Liens securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens shall not at any time encumber any Property other than the Property financed by such Indebtedness and (iii) the amount of Indebtedness secured thereby shall not be increased;

 

(h)            Liens created pursuant to the Security Documents;

 

(i)             any interest or title of a lessor under any lease entered into by the Borrower or any other Subsidiary in the ordinary course of its business and covering only the assets so leased;

 

 

(j)            judgment liens securing judgments not constituting (or which would otherwise create) an Event of Default;

  

(k)            licenses of Intellectual Property in the ordinary course of business;

 

(l)            liens on fixed assets existing at the time such fixed assets are acquired in connection with a Permitted Acquisition and not created in contemplation thereof;

 

(m)            deposits in an aggregate amount not to exceed $5,000,000 at any one time outstanding made in the ordinary course of business to secure liability to insurance carriers;

 

(n)            Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and other similar Liens arising in the ordinary course of business;

 

(o)            Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(p)            leases or subleases granted to third Persons not interfering with the ordinary course of business of the Borrower or any of its Subsidiaries;

 

(q)            Liens on assets of a Subsidiary of the Borrower that is not a Subsidiary Guarantor securing Indebtedness of that Subsidiary; provided that such Indebtedness was permitted to be incurred by Section 6.2;

 

(r)            Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;

 

(s)            Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such Capital Stock, (ii) such Liens do not at any time encumber any Property other than the Capital Stock of such acquired Person and (iii) the amount of Indebtedness secured thereby does not exceed $50,000,000;

 

(t)            Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) or (m); provided that such Liens shall at all times be subject to the Second Lien Intercreditor Agreement;

 

(u)            Liens not otherwise permitted by this Section 6.3, so long as neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate Fair Market Value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds the greater of $25,000,000 or 1.00% of Consolidated Total Assets at any one time; and

 

 

(v)            Liens with respect to Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 6.2(o).; and

  

(w)            Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(p); provided that such Liens shall at all times be subject to a Pari Passu Intercreditor Agreement.

 

6.4            Limitation on Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its Property or business, except that:

 

(a)            any Subsidiary may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall be the continuing or surviving corporation);

 

(b)            any Subsidiary that is not a Subsidiary Guarantor may be merged or consolidated with or into any other Subsidiary that is not a Subsidiary Guarantor;

 

(c)            any Subsidiary may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Subsidiary Guarantor;

 

(d)            any Subsidiary that is not a Subsidiary Guarantor may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any other Subsidiary that is not a Subsidiary Guarantor;

 

(e)            any Subsidiary may divide if such division would otherwise be permitted if effectuated in the form of a merger, consolidation, amalgamation, sale, lease, transfer, disposition, liquidation, dissolution or other transaction permitted hereunder;

 

(f)            the Borrower or any Subsidiary may merge or consolidate with any other Person in connection with any Permitted Acquisition or any other Investment permitted by Section 6.8 or any Disposition permitted by Section 6.5 (other than Section 6.5(c)); provided that (i) if the Borrower is a party to such merger or consolidation, the Borrower is the continuing or surviving Person and (ii) if such Subsidiary is a Subsidiary Guarantor, then either such Subsidiary Guarantor shall be the continuing or surviving Person or such surviving Person shall become a Subsidiary Guarantor promptly after such merger or consolidation; and

 

(g)            to the extent constituting Investments, transactions expressly permitted under Sections 6.5 (other than Section 6.5(c)) and 6.8.

 

6.5            Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:

 

(a)            the Disposition of obsolete or worn out property in the ordinary course of business;

 

 

(b)            the sale of inventory and the Disposition of cash and Cash Equivalents in the ordinary course of business;

  

(c)            Dispositions permitted by Section 6.4;

 

(d)            the sale or issuance of any Subsidiary’s Capital Stock to (i) the Borrower or any Subsidiary Guarantor or (ii) a Subsidiary that is not a Subsidiary Guarantor to the extent permitted by Section 6.8;

 

(e)            the Disposition of other assets in any fiscal year of the Borrower that contributed, in the aggregate, not more than 20% of Consolidated EBITDA for the prior fiscal year; provided that in the case of each such Disposition, the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.1 after giving effect to such Disposition (determined on the assumption that such Disposition and the repayment of any Indebtedness resulting therefrom had occurred on the first day of the relevant period measured by such covenants);

 

(f)            any Disposition constituting a Recovery Event; and

 

(g)            Dispositions of Intellectual Property that in the exercise of its reasonable business judgment, the Borrower has determined are not of material value to the business of the Borrower and its Subsidiaries, taken as a whole.

 

 

6.6            Limitation on Restricted Payments. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating the Borrower or any Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any such Capital Stock (collectively, “Restricted Payments”), except: (a) any Subsidiary may declare and make Restricted Payments to the Borrower, any Subsidiary Guarantor or any other Person that owns Capital Stock of such Subsidiary on a pro rata basis; (b) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Borrower would be in compliance with the covenants set forth in Section 6.1 for the applicable period for which the financial statements and certificates required by Section 5.1(a) or (b) and Section 5.2(a) have been delivered or are available, after giving pro forma effect to such Restricted Payment and to any other event occurring after such period as to which pro forma recalculation is appropriate, the Borrower may declare and make Restricted Payments during any Fiscal Quarter if, at the time such Restricted Payment is made, such Restricted Payment, together with all other Restricted Payments made pursuant to this clause (b) during such Fiscal Quarter, does not exceed an aggregate amount equal to the Available Amount at such time; and (c) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may declare and make Restricted Payments (i) in exchange for Capital Stock of the Borrower (other than Disqualified Stock), (ii) to be used for the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of the Borrower held by any current or former officer, director or employee of the Borrower pursuant to any equity subscription agreement, stock option plan or any other management or employee benefit plan or agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $10,000,000 in any fiscal year of the Borrower (provided that the Borrower may carry over and make in a subsequent fiscal year, commencing with 2013, in addition to the amounts permitted for such fiscal year, up to $2,000,000 of unutilized capacity under this clause (c)(ii) attributable to the immediately preceding fiscal year); provided, further, that such amount in any fiscal year may be increased by an amount not to exceed the Net Cash Proceeds received by the Borrower or any of its Subsidiaries (to the extent contributed to the Borrower) from sales of Capital Stock (other than Disqualified Stock) of the Borrower to officers, directors or employees of the Borrower or any of its Subsidiaries that occur after the Closing Date (provided that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by this proviso in any fiscal year); provided, further, that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower or any Subsidiary in connection with a repurchase of Capital Stock of the Borrower will not be deemed to constitute a Restricted Payment, (iii) to be used for the repurchase of Capital Stock deemed to occur upon the exercise of stock options to the extent such Capital Stock represent a portion of the exercise price of those stock options, (iv) to holders of its Capital Stock in lieu of the issuance of fractional shares of its Capital Stock and (v) to be used for the acquisition of any shares of Disqualified Stock of the Borrower in exchange for other shares of Disqualified Stock of the Borrower or with the net cash proceeds from an issuance of Disqualified Stock by the Borrower within 10 Business Days of such issuance, in each case to the extent such issuance is not prohibited under Section 6.2 hereto, Section 4.09 of the Senior Note Indenture and applicable provision under the New Senior Note Indenture.

  

6.7            [Reserved.]

 

6.8            Limitation on Investments. Make after the Closing Date any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the foregoing, “Investments”), except:

 

(a)            extensions of trade credit in the ordinary course of business;

 

(b)            investments in Cash Equivalents;

 

(c)            Investments arising in connection with the incurrence and lending of Indebtedness permitted by Sections 6.2(b) and (e);

 

(d)            loans and advances to employees of the Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Borrower and its Subsidiaries not to exceed $5,000,000 at any one time outstanding;

 

(e)            Permitted Acquisitions;

 

 

(f)            (i) Investments (other than those relating to the incurrence of Indebtedness permitted by Section 6.8(c)) by the Borrower or any of its Subsidiaries in the Borrower or any Person that, prior to such investment, is a Subsidiary Guarantor; (ii) Investments by any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor; and (iii) Investments by the Borrower or any Subsidiary Guarantor in any Subsidiary that is not a Subsidiary Guarantor in an amount not to exceed the greater or $50,000,000 or 2.00% of Consolidated Total Assets;

  

(g)            any Investments received (i) in compromise or resolution of (x) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or any of its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (y) litigation, arbitration or other disputes with Persons who are not Affiliates; or (ii) in satisfaction of judgments;

 

(h)            loans by the Borrower in an aggregate principal amount not exceeding $5,000,000 to employees of the Borrower or its Subsidiaries to finance the sale of the Borrower’s Capital Stock by the Borrower to such employees;

 

(i)            receivables owing to the Borrower or any Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

 

(j)            any Investment in any Person to the extent such Investment consists of prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Borrower of any of its Subsidiaries;

 

(k)            Investments obtained as consideration for a Disposition of property permitted under Section 6.5 in an aggregate amount not to exceed 25% of the total aggregate consideration received from all Dispositions of property permitted under Section 6.5 during the term hereof;

 

(l)            Investments consisting of Hedging Obligations;

 

(m)            the Acquisition;

 

(n)            Investments in an amount that does not exceed the Available Amount immediately prior to the time of the making of such Investment; provided that no Default or Event of Default has occurred and is continuing or would result therefrom; and

 

(o)            other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (o) or clause (i)(ii) of the definition of “Permitted Acquisition” that are at the time outstanding, not to exceed an amount equal to the sum of (i) $200,000,000 plus (ii) any amount attributable to Excluded Issuances after the Closing Date less the amount of any such Excluded Issuances that have been used after the Closing Date to make any Investments pursuant to this clause (o) or to finance any Permitted Acquisition; provided that, if an Investment made pursuant to this clause (o) is made in any Person that is not a Subsidiary at the date of the making of such Investment and such Person becomes a Subsidiary after such date, such Investment will thereafter be deemed to have been made pursuant to clause (f) above and shall cease to have been made pursuant to this clause (o).

 

  

6.9            Limitation on Optional Payments and Modifications of Debt Instruments, etc. (a) Make any distribution, whether in cash, property, securities or a combination thereof, other than regular scheduled payments of principal and interest as and when due (to the extent not prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or directly or indirectly redeem, repurchase, retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any Indebtedness except (A) the payment of the Indebtedness created hereunder, (B) refinancings of Indebtedness to the extent such refinancings are permitted by Section 6.2, (C) any refinancing, repayment, redemption, repurchase, retirement or other acquisition for consideration of Indebtedness, in an amount that does not exceed the Available Amount immediately prior to the time of such refinancing, repayment, redemption, repurchase, retirement or other acquisition for consideration; provided that no Default or Event of Default has occurred and is continuing or would result therefrom, (D) the payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, (E) the prepayment of the Existing Senior Notes Due 2021 with the proceeds of the Tranche B-4 Term Loans, Revolving Credit Loans and the proceeds of New Senior Notes to be issued on or about the Third Amendment Effective Date, (F) the prepayment of the Senior Notes or New Senior Notes with the proceeds of any senior notes or term loans issued or incurred, as applicable, and secured on a pari passu basis with the Loans incurred under the Facilities, (b) amend, modify or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Senior Notes, the Senior Note Indenture, the New Senior Notes or the New Senior Note Indenture, or the indenture or instruments governing any Indebtedness that refinances the Senior Notes or the New Senior Notes in a manner materially adverse to the Agents or the Lenders or in a manner which imposes terms, conditions, covenants or obligations on the Loan Parties which are materially more restrictive on such Loan Parties or (c) amend, modify or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, the certificate of incorporation, by-laws, limited liability company agreement, operating agreement, partnership agreement or similar organizational document of the Borrower or any of its Subsidiaries in any manner materially adverse to the Agents or the Lenders.

 

6.10            Limitation on Transactions with Affiliates. Enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than the Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise not prohibited under this Agreement and (b) upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary, as the case may be, than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, the Borrower and its Subsidiaries may enter into the transactions set forth on Schedule 6.10.

 

6.11            Limitation on Sales and Leasebacks. Enter into any sale and leaseback transaction; provided that the Borrower or any Subsidiary may enter into a sale and leaseback transaction if:

 

 

(a)            the Borrower or such Subsidiary, as applicable, could have (i) incurred Indebtedness in an amount equal to the Attributable Debt relating to such sale and leaseback transaction under Section 6.2 and (ii) incurred a Lien to secure such Indebtedness pursuant to Section 6.3;

  

(b)            the gross cash proceeds of that sale and leaseback transaction are at least equal to the Fair Market Value of the property that is the subject of that sale and leaseback transaction; and

 

(c)            the transfer of assets in that sale and leaseback transaction is permitted by Section 6.5.

 

6.12            Limitation on Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day other than the Saturday nearest to December 31 without the consent of the Administrative Agent.

 

6.13            Limitation on Negative Pledge Clauses. Enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of the Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of its Property or revenues, whether now owned or hereafter acquired, to secure the Obligations or, in the case of any Subsidiary Guarantor, its obligations under the Guarantee and Collateral Agreement, other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby), (c) customary non-assignment provisions in licenses or sublicenses by the Borrower and its Subsidiaries in the ordinary course of business (in which case such prohibition or limitation shall only be effective against the Intellectual Property subject thereto), (d) customary provisions in joint venture agreements and similar agreements that restrict transfers of assets of, or equity interests in, such joint venture, (e) agreements governing Indebtedness permitted by Sections 6.2(g), (h) and (m) (provided that, in the case of such agreements governing Indebtedness permitted by Section 6.2(h), such prohibition or limitation shall be effective only against the property acquired thereby) and (f) agreements entered into by a Subsidiary that is not a Subsidiary Guarantor governing Liens permitted by Section 6.3(m) or the Indebtedness secured thereby (in which case such prohibition or limitation shall only be effective against the assets of such Subsidiary subject to such Lien).

 

 

6.14            Limitation on Restrictions on Subsidiary Distributions. Enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held by, or pay or subordinate any Indebtedness owed to, the Borrower or any other Subsidiary, (b) make Investments in the Borrower or any other Subsidiary or (c) transfer any of its assets to the Borrower or any other Subsidiary, except for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the Loan Documents, (ii) any restrictions existing under the New Senior Note Indenture, the New Senior Note Indenture and any agreements governing Indebtedness permitted by Sections 6.2(f), to the extent such restrictions are no more restrictive than those in the Senior Note Indenture or the New Senior Note Indenture, (iii) any restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, (iv) customary net worth provisions contained in real property leases entered into in by any Loan Party so long as such net worth provisions would not reasonably be expected to impair materially the ability of the Loan Parties to meet their ongoing obligations under this Agreement or any of the other Loan Documents, and (v) with respect to clause (c) only, (i) customary non-assignment provisions in licenses or sublicenses by the Borrower and its Subsidiaries in the ordinary course of business (in which case such prohibition or limitation shall only be effective against the Intellectual Property subject thereto), (ii) customary provisions in joint venture agreements and similar agreements that restrict transfers of assets of, or equity interests in, such joint venture, (iii) agreements governing Indebtedness permitted by Sections 6.2(g), (h) and (m) (provided that, in the case of such agreements governing Indebtedness permitted by Section 6.2(h), such prohibition or limitation shall be effective only against the property acquired thereby), (iv) agreements entered into by a Subsidiary that is not a Subsidiary Guarantor governing Liens permitted by Section 6.3(m) or the Indebtedness secured thereby (in which case such prohibition or limitation shall only be effective against the assets of such Subsidiary subject to such Lien) and (v) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby).

  

6.15            Limitation on Lines of Business. Enter into any business, either directly or through any Subsidiary, except for those businesses in which the Borrower and its Subsidiaries are engaged on the date of this Agreement or that are reasonably related thereto.

 

Section 7. EVENTS OF DEFAULT

 

If any of the following events shall occur and be continuing:

 

(a)            the Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan Document, within five days after any such interest or other amount becomes due in accordance with the terms hereof; or

 

(b)            any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other written statement furnished by it at any time under or in connection with this Agreement or any other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made or furnished; or

 

(c)            any Loan Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 5.4(a) (with respect to the Borrower only), Section 5.7(a) or Section 6 (provided that an Event of Default under Section 6.1 shall not constitute an Event of Default for purposes of the Tranche B-4 Term Loan Facility or any other Term Loan Facility unless and until the Majority Facility Lenders with respect to the Revolving Credit Facility have terminated the Revolving Credit Commitments and declared the Revolving Credit Loans due and payable), or Section 5.6 of the Guarantee and Collateral Agreement; or

 

 

(d)           any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period of 30 days; or

 

(e)            the Borrower or any of its Subsidiaries shall (i) default in making any payment of any principal of any Indebtedness (including, without limitation, any Guarantee Obligation, but excluding the Loans and Reimbursement Obligations) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate $40,000,000; or

 

(f)            (i) the Borrower or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future Debtor Relief Law, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower or any of its Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower or any of its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or

 

(g)           there shall occur an ERISA Event, a Foreign Benefit Event or any other similar event or condition with respect to a Plan or Multiemployer Plan (other than in the ordinary course of business) that could result in liability of the Borrower or any Subsidiary that, in the sole judgment of the Required Lenders, when taken together with all other such ERISA Events, Foreign Benefit Events or other similar events or conditions, resulted or could reasonably be expected to result in a Material Adverse Effect; or

 

 

(h)           one or more judgments or decrees shall be entered against the Borrower or any of its Subsidiaries involving for the Borrower and its Subsidiaries taken as a whole a liability (not paid or fully covered by insurance as to which the relevant insurance company has not disputed or denied coverage (but only to the extent of the dispute or denial of coverage)) of $40,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or

 

(i)            any of the Security Documents or any other material Loan Document shall cease, for any reason (other than in accordance with their respective terms), to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created or purported to be created by any of the Loan Documents shall cease to be, or shall be asserted by any Loan Party not to be, at any time a valid and perfected Lien on a material portion of the Collateral purported to be secured thereby (except Liens released in accordance with the terms of the Loan Documents); or

 

(j)            the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or any Affiliate of any Loan Party shall so assert (except, in each case, in accordance with its terms or guarantees released in accordance with the terms of the Loan Documents); or

 

(k)           any subordinated Indebtedness of the Borrower and its Subsidiaries the outstanding principal amount of which exceeds in the aggregate $40,000,000 shall cease (or any Loan Party or an Affiliate of any Loan Party shall so assert), for any reason, to be validly subordinated to the Obligations as provided in the agreements evidencing such subordinated Indebtedness; or

 

(l)            (i) a “Change of Control” as defined in the Senior Note Indenture (or in any document or agreement governing or evidencing refinancing Indebtedness in respect of all or any portion of the Senior Notes) or in the New Senior Note Indenture (or in any document or agreement governing or evidencing refinancing Indebtedness in respect of all or any portion of the New Senior Notes) shall occur or (ii) a Specified Change of Control shall occur;

 

 

then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower, automatically the Revolving Credit Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become due and payable, (B) if such event is any other Event of Default (other than in the case of an Event of Default under Section 7(c) with respect to any default of performance or compliance with the covenants under Section 6.1 prior to the date the Revolving Credit Loans (if any) have been accelerated and the Revolving Credit Commitments have been terminated), either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable, (C) if such event is an Event of Default under Section 7(c) with respect to any default of performance or compliance with the covenants under Section 6.1, either or both of the following actions may be taken: (i) with the consent of the Majority Facility Lenders of the Revolving Credit Facility, the Administrative Agent may, or upon the request of the Majority Facility Lenders of the Revolving Credit Facility, the Administrative Agent shall, by notice to the Borrower declare the Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate; and (ii) with the consent of the Majority Facility Lenders of the Revolving Credit Facility, the Administrative Agent may, or upon the request of the Majority Facility Lenders of the Revolving Credit Facility, the Administrative Agent shall, by notice to the Borrower, declare the Revolving Credit Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement with respect to the Revolving Credit Facility (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto).

 

Section 8. THE AGENTS; THE ARRANGERS

 

8.1           Appointment. Each of the Issuing Lender and each Lender hereby irrevocably designates and appoints the Administrative Agent and the Collateral Agent (for purposes of this Section 8, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) as its agent under this Agreement and the other Loan Documents, and each of the Issuing Lender and each Lender irrevocably authorizes each Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Agents, the Issuing Lender and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. 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 or the Collateral Agent, as applicable, 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. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to (i) execute any and all documents (including releases and the Security Documents) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and (ii) negotiate, enforce or the settle any claim, action or proceeding affecting the Lenders in their capacity as such, at the direction of the Required Lenders, which negotiation, enforcement or settlement will be binding upon each Lender.

 

 

The Person serving as the Administrative Agent and/or the Collateral Agent hereunder or under any other applicable Loan Document 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 an Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 (subject to securities law and other Requirements of Law) as if it were not an Agent hereunder and without any duty to account therefor to the Lenders.

 

8.2           Delegation of Duties. Each Agent may perform any, and all of its duties and exercise its rights and powers, under this Agreement and the other Loan Documents by or through agents, sub-agents or attorneys-in-fact appointed by it and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Each Agent and any such agent, sub-agent or attorney-in-fact may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of Section 8.3 shall apply to any such agent, sub-agent and attorney-in-fact and to the Related Parties of each Agent and any such agent, sub-agent and attorney-in-fact, and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Agent. No Agent shall be responsible for the negligence or misconduct of any agents, sub-agents or attorneys-in-fact except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that such Agent acted with gross negligence, willful misconduct or bad faith in the selection of such agent, sub-agent or attorney-in-fact.

 

8.3           Exculpatory Provisions. No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents, and each Agent’s duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, no Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall (a) be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is instructed in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided for herein or in the other Loan Documents); provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it 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 such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 7) or in the absence of its own gross negligence, willful misconduct or bad faith as determined by a court of competent jurisdiction by a final non-appealable judgment. No Agent shall be responsible for or have any duty to inspect the properties, books or records of any Loan Party or 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, statement or other document referred to or provided for, or received by any Agent under or in connection with, this Agreement or any other Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Section 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent.

 

 

8.4           Reliance by Administrative Agent. Each Agent shall be entitled to rely, and shall not incur any liability for relying, upon any instrument, writing, resolution, notice, request, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or 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, made or otherwise authenticated by the proper Person or Persons. Each Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender, each Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless such Agent shall have received notice to the contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. Each Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense (other than any liability or expense arising from its gross negligence, willful misconduct or bad faith) that may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders or, in the case of the Collateral Agent, if so specified by the applicable Security Document, such other requisite number or percentage of Secured Parties), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans, the Commitments and L/C Obligations.

 

 

8.5           Notice of Default. No Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless such Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders.

 

8.6           Non-Reliance on Agents and Other Lenders. Each of the Issuing Lender and each Lender expressly acknowledges that none of the Agents nor any of their respective Related Parties have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by such Agent to the Issuing Lender or any Lender. Each of the Issuing Lender and each Lender represents to each Agent that it has, independently and without reliance upon any Agent or any Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Affiliates and made its own decision to make its Loans and other extensions of credit hereunder and enter into this Agreement. Each of the Issuing Lender and each Lender also represents that it will, independently and without reliance upon any Agent or any Lender or any of their respective Related Parties, and based on such documents and information as it shall deem appropriate at the time, it will, independently and without reliance upon any Agent or any Lender or any of their respective Related parties, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, no Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.

 

8.7           Indemnification. The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Revolving Credit Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (including, without limitation, at any time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of, the Revolving Credit Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s gross negligence, willful misconduct or bad faith. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder.

 

 

8.8           Administrative Agent in Its Individual Capacity. The Person serving as the Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party as though the Person serving as the Administrative Agent were not the Administrative Agent hereunder. With respect to its Loans made or renewed by it and with respect to any Letter of Credit issued or participated in by it, the Person serving as the Administrative Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the Person serving as the Administrative Agent in its individual capacity.

 

8.9           Successor Agents. Each Agent may resign at any time upon 10 days’ written notice to the Lenders, the Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint from among the Lenders a successor Agent, which successor Agent shall (unless an Event of Default under Section 7(a) or Section 7(f) with respect to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor Agent shall succeed to the rights, powers and duties of the resigning Agent, and the term “Administrative Agent” and/or “Collateral Agent”, as applicable, shall mean such successor Agent effective upon such appointment and approval, and the resigning Agent’s rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part of such resigning Agent or any of the parties to this Agreement or any holders of the Loans. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 10 days after the resigning Agent gives notice of its resignation, then the resigning Agent may, on behalf of the Lenders and the Issuing Lender, appoint a successor Agent which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the 10th day after the date such notice of resignation was given by such Agent, such Agent’s resignation shall become effective (and such Agent shall be relieved from its duties and obligations hereunder) and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent and/or Collateral Agent, as the case may be. Any such resignation by such Agent hereunder shall also constitute, to the extent applicable, its resignation as the Issuing Lender, in which case such resigning Agent (a) shall not be required to issue any further Letters of Credit hereunder and (b) shall maintain all of its rights as Issuing Lender with respect to any Letters of Credit issued by it prior to the date of such resignation. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning Agent, and the resigning Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Section 8 and Section 9.5 shall continue in effect for the benefit of such resigning 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 acting as Agent.

 

 

8.10         Authorization to Release Liens; Other Actions Relating to Security Documents. The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion, (a) to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon termination of all Commitments and payment in full of all Obligations (other than contingent obligations in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or written) has been made (and, in the case of Obligations for indemnification, no notice for indemnification has been issued by the indemnitee) at such time) and the expiration or termination of all Letters of Credit (other than Letters of Credit that have been cash collateralized or backstopped in a manner reasonably acceptable to the relevant Issuing Lender and the Administrative Agent), (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, or (iii) subject to Section 9.1, if approved, authorized or ratified in writing by the Required Lenders; (b) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.3(g); and (c) to release any Subsidiary Guarantor from its obligations under the Guarantee and Collateral Agreement or any other Security Document if such Person ceases to be a Subsidiary Guarantor as a result of a transaction permitted under the Loan Documents. Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Subsidiary Guarantor from its obligations under the Guarantee and Collateral Agreement pursuant to this paragraph. The Collateral 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 Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the other Secured Parties for any failure to monitor or maintain any portion of the Collateral.

 

8.11         The Arrangers; the Co-Syndication Agents; the Co-Documentation Agents. Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, each of the Arrangers, each of the Co-Syndication Agents and each of the Co-Documentation Agents are named as such for recognition purposes only, and in their respective capacities as such shall have no duties, responsibilities or liabilities with respect to this Agreement or any other Loan Document; it being understood and agreed that each of the Arrangers, each of the Co-Syndication Agents and each of the Co-Documentation Agents shall be entitled to all indemnification and reimbursement rights in favor of the Agents provided herein and in the other Loan Documents. Without limiting the foregoing, none of the Arrangers, the Co-Syndication Agents or the Co-Documentation Agents in their respective capacities as such shall, by reason of this Agreement or any other Loan Document, have any fiduciary relationship in respect of any Lender, the Issuing Lender, any Loan Party or any other Person.

 

 

8.12         Certain Proceedings. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether such Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) 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 and all other Obligations 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 Issuing Lender and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Lender and the Agents and their respective agents, sub-agents and counsel and all other amounts due the Lenders, the Issuing Lender and the Agents under Section 9.5) 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, in either case, any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to such Agent and, in the event that such Agent shall consent to the making of such payments directly to the Lenders, to pay to such Agent any amount due for the reasonable compensation, expenses, disbursements and advances of such Agent and its agents, sub-agents and counsel, and any other amounts due such Agent under Sections 9.5.

 

8.13         Withholding Taxes. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender or the Issuing Lender an amount equivalent to any applicable withholding Tax. If any payment has been made to any Lender or the Issuing Lender by the Administrative Agent without the applicable withholding Tax being withheld from such payment and the Administrative Agent has paid over the applicable withholding Tax to the Internal Revenue Service, any other Governmental Authority, or the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender or the Issuing Lender or any Tax is attributable to a Lender's failure to maintain a Participant Register pursuant to Section 9.6(b), such Lender or the Issuing Lender, as applicable, shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. The indemnity under this Section 8.13 shall be paid within 10 days after the Administrative Agent delivers to the applicable Lender a certificate stating the amount so paid or payable by the Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 8.13.

 

 

8.14         Certain ERISA Matters.

 

(a)            Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Refinancing Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:

 

(i)              such Lender is not using “plan assets” (within the meaning of 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans in connection with the Loans, the Letters of Credit or the Commitments,

 

(ii)             the transaction exemption set forth in PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to and fully covers and exempts such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,

 

(iii)            (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or

 

(iv)            such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

(b)           In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and Refinancing Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:

 

 

(i)              none of the Administrative Agent or the Refinancing Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),

 

(ii)             the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

 

(iii)            the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),

 

(iv)            the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

 

(v)             no fee or other compensation is being paid directly to the Administrative Agent, the Arrangers or the Refinancing Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.

 

(c)           The Administrative Agent and the Refinancing Arranger hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

 

 

Section 9. MISCELLANEOUS

 

9.1           Amendments and Waivers. Subject to Section 2.15, neither this Agreement or any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with the provisions of this Section 9.1. Subject to the provisions of the immediately following sentence, the Required Lenders and each Loan Party party to the relevant Loan Document may, or (with the written consent of the Required Lenders) the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents (including amendments and restatements hereof or thereof) for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as may be specified in the instrument of waiver, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (i) forgive, waive or excuse the principal amount or extend the final scheduled date of maturity or any amortization payment of any Loan or Reimbursement Obligation, or reduce the stated rate of any interest (other than the waiver of default interest) or fee payable hereunder or extend the scheduled date of any payment thereof or modify the definition of Interest Period to permit an Interest Period greater than six months in duration, or increase the amount or extend the expiration date of the Revolving Credit Commitment of any Lender, in each case without the consent of each Lender directly affected thereby; (ii) amend, modify or waive any provision of this Section 9.1 (except for technical amendments with respect to additional extensions of credit pursuant to this Agreement which afford the protections to such additional extensions of credit of the type provided to the Loans and the Commitments on the Closing Date, which technical amendments shall, for the avoidance of doubt, be subject to the consent of the Required Lenders) or reduce any percentage specified in the definition of Required Lenders (it being understood that, with the written consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Loans and Commitments are included on the Closing Date), consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release all or substantially all of the value of the Subsidiary Guarantors’ guarantee obligations under the Guarantee and Collateral Agreement, in each case without the consent of all Lenders; (iii) amend, modify or waive any provision of Section 8 without the consent of the Administrative Agent; (iv) amend, modify or waive any provision of Section 2.16 without the consent of each Lender directly affected thereby; (v) amend, modify, or waive any provision of Sections 2.23 through 2.30 without the consent of the Issuing Lenders; (vi) extend the expiration date of any Letter of Credit to a date later than the fifth Business Day prior to the Revolving Credit Termination Date without the consent of each Lender (including the Issuing Lender) unless such Letter of Credit has been cash collateralized or backstopped in a manner reasonably acceptable to the relevant Issuing Lender; (vii) reduce the percentage specified in the definition of Majority Facility Lenders with respect to any Facility without the consent of all Lenders under such Facility; (viii) alter the required application of any repayments or prepayments as between Facilities pursuant to Sections 2.9 and 2.10 without the consent of Majority Facility Lenders with respect to each Facility being allocated a lesser repayment or prepayment as a result thereof (it being understood, however, that additional extensions of credit being given substantially the same treatment as the Loans and Commitments on the Closing Date shall be permitted by vote of the Required Lenders and the Required Lenders may waive, in whole or in part, any prepayment or commitment reductions so long as the application, as among the various Facilities and as among the Lenders of each such Facility, of any such prepayment or commitment reduction which is still required to be made is not altered); (ix) impose any additional restrictions on any Lender’s ability to assign any of its rights or obligations hereunder (including any amendment to Section 9.6) (other than, for the avoidance of doubt, any supplement to the Excluded Lender list in compliance herewith) without the prior written consent of the Lenders adversely affected thereby); or (x) amend or modify the definition of “Qualified Counterparty,” “Specified Hedge Agreement” or “Secured Obligations” (as defined in the Guarantee and Collateral Agreement) in each case in a manner adverse to any Qualified Counterparty with Secured Obligations (as defined in the Guarantee and Collateral Agreement) then outstanding without the written consent of such Qualified Counterparty; or (xi) subordinate the Liens securing any of the Secured Obligations on all or substantially all of the Collateral to any other Lien securing any other Indebtedness (except as provided in Section 8.10 with respect to Liens permitted by 6.3(g)) or subordinate the Secured Obligations in contractual right of payment to any other Indebtedness, in each case, without the consent of each Lender affected thereby; provided that no such Lender’s consent shall be required pursuant to this clause (xi) with respect to any debtor-in-possession financing; provided, however, that, notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to consent to any such agreement, other than any such agreement which amends, modifies or otherwise affects the rights or obligations of a Defaulting Lender differently than the rights or obligations of the other Lenders or increases or extends the Commitment or decreases the principal amount of, or extends the maturity of any scheduled principal payment date or date for the payment of any interest on any Loan of any such Defaulting Lender. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans and L/C Obligations. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Any such waiver, amendment, supplement or modification shall be effected by a written instrument signed by the parties required to sign pursuant to the foregoing provisions of this Section; provided that delivery of an executed signature page of any such instrument by facsimile transmission shall be effective as delivery of a manually executed counterpart thereof. Notwithstanding the foregoing, (A) the waiver of any condition set forth in Section 4.2 as to any extension of credit under any Facility may be effected solely with the written consent of the Majority Facility Lenders under such Facility and (B) any other amendment or waiver solely affecting one Facility and not any other Facility may be effected solely with the consent of the Majority Facility Lenders under such affected Facility.

 

 

9.2           Notices. Except in the case of notices and other communications expressly permitted to be given by telephone (and except for electronic communications provided for below), all notices, requests, demands and other communications to or upon the respective parties hereto to be effective shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:

 

The Borrower:	B&G Foods, Inc. Four Gatehall Drive, Suite 110 Parsippany, NJ  07054 Attention:  Chief Financial Officer Telecopy: 973-630-6550 Telephone: 973-401-6500
with a copy to:	B&G Foods, Inc. Four Gatehall Drive, Suite 110 Parsippany, NJ  07054 Attention:  General Counsel Telecopy: 973-630-6550 Telephone: 973-401-6500
The Administrative Agent or the Collateral Agent:	Notices (other than Requests for Extensions of Credit): Barclays Bank PLC Bank Debt Management Group 745 Seventh Avenue New York, NY 10019 Attn: Christopher Lee Tel: + 1 212 526 0732 Facsimile: 212-526-5115 Email: Christopher.r.lee@barclays.com   For Payments and Requests for Extensions of Credit: Barclays Bank PLC Loan Operations 1301 Avenue of the Americas New York, NY 10019 Attn: Agency Services – B&G Foods; Contact Name Michele Sirigos Tel: +1 212-320 - 6136 Facsimile: 917-522-0569 Email: xrausloanops5@barclays.com
Issuing Lender:	As notified by such Issuing Lender to the Administrative Agent and the Borrower
Lenders:	To the applicable Lender as set forth in an administrative questionnaire delivered to the Administrative Agent or on Schedule I to the lender addendum to which such Lender is a party or, in the case of a Lender which becomes a party to this Agreement pursuant to an Assignment and Assumption, in such Assignment and Assumption.

 

 

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications, to the extent provided in the immediately following paragraph, shall be effective as provided in said paragraph.

 

Notices and other communications to the Lenders 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 pursuant to Section 2 if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Section 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, (a) 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), and (b) 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 (a), of notification that such notice or communication is available and identifying the website address therefore; provided that, for both clauses (a) and (b) above, if such notice, email 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. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notices may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.

 

Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.

 

Each Loan Party agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “Platform”). The Platform is provided “as is” and “as available.” The Administrative Agent and its Related Parties do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, 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 Administrative Agent or any of its Related Parties in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties have any liability to the Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to this Section, including through the Platform.

 

 

The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on the Platform and (b)certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (i) 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; (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent 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 confidential information, they shall be treated as set forth in Section 9.14); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” and (iv) the Administrative Agent 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 marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be marked “PUBLIC”, unless the Borrower notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the Loan Documents and (2) notification of changes in the terms of the Facilities.

 

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 Communications 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.

 

 

The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.

 

Nothing herein shall prejudice the right of any Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

 

9.3           No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any Agent, the Issuing Lender or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder 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 are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

9.4           Survival of Representations and Warranties. All covenants, agreements, representations and warranties made by the Loan Parties herein, in the other Loan Documents and in the documents, certificates, statements or instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Agents, the Lenders and the Issuing Lender and shall survive the making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing Lender, regardless of any investigation made by the Agents, the Lenders or the Issuing Lender or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding (other than Letters of Credit that have been cash collateralized or backstopped in a manner reasonably acceptable to the relevant Issuing Lender and the Administrative Agent) and so long as the Commitments have not been terminated. The provisions of Sections 2.17, 2.18, 2.19 and 9.5 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of any Agent, the Issuing Lender or any Lender.

 

 

9.5           Payment of Expenses. The Borrower agrees (a) to pay or reimburse the Administrative Agent, the Collateral Agent, the Arrangers and the Issuing Lender, upon presentation of a reasonably detailed statement for all their reasonable and documented out-of-pocket costs and expenses, including, without limitation, the reasonable fees and disbursements and other charges of a single New York counsel (provided that, if the Administrative Agent, the Collateral Agent, the Arrangers and the Issuing Lender (or any of the foregoing) is advised by counsel that there are actual or perceived conflicts of interest, the Borrower will be required to pay for one additional counsel for each affected party) and appropriate local or special counsel, incurred in connection with the Transactions, the syndication of the Commitments and with the development, preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents, and any amendment, supplement, waiver or modification of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated), and any other documents prepared in connection herewith or therewith, and the consummation of the transactions contemplated hereby and thereby, including, without limitation, (i) all charges related to the Platform and (ii) all reasonable expenses incurred by the Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, (b) to pay or reimburse the Administrative Agent, the Collateral Agent, the Issuing Lender and the Lenders (other than any Excluded Lenders), upon presentation of a reasonably detailed statement, for all their documented costs and expenses, including, without limitation, the fees, disbursements and other charges of counsel, incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents (provided that the Administrative Agent, the Collateral Agent and any Issuing Lender that is an Affiliate of any such Agent shall engage a single New York counsel unless such Agents and such Issuing Lender (or any of the foregoing) is advised by counsel that there are actual or perceived conflicts of interest, in which case the Borrower will be required to pay for one additional New York counsel for each affected party), (c) to pay, and indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Arranger, the Issuing Lender, each Co-Syndication Agent, each Co-Documentation Agent and each Lender (other than any Excluded Lenders) from any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, (d) to pay, and indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Arranger, the Issuing Lender, each Co-Syndication Agent, each Co-Documentation Agent and each Lender (other than any Excluded Lender) and each Related Party of any of the foregoing Persons (each, an “Indemnitee”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, claims, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees, disbursements and other charges of a single New York counsel (provided that, if the Indemnitees (or any of them) are advised by counsel that there are actual or perceived conflicts of interest, the Borrower will be required to pay for one additional counsel for each affected party) and appropriate local or special counsel) arising out of, in connection with, as a result of or with respect to (i) the execution, delivery, enforcement, performance or administration of this Agreement, any other Loan Document or any such other documents or instruments, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions contemplated hereby or thereby (including the syndication of the Facilities), (ii) the use of proceeds of the Loans or the use of the Letters of Credit, (iii) any actual or alleged presence or release of Materials of Environmental Concern on any property currently or formerly owned or operated by the Borrower or any of its Subsidiaries, or the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Borrower, any of its Subsidiaries or any of the Properties or (iv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates) (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct of such Indemnitee or (ii) a dispute solely among Indemnitees (other than any claim, litigation, investigation or proceeding against an Indemnitee in its capacity as Arranger, the Administrative Agent or other similar role) that does not involve any action or inaction by the Borrower or its affiliates and (e) to pay or reimburse the Administrative Agent for any loss, cost or expense arising from any assignment to an Excluded Lender, except to the extent such losses, costs, or expenses are found by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent. No Indemnitee shall be liable for any damages arising from the use by unauthorized persons of information or other materials sent through electronic, telecommunications or other information transmission systems that are intercepted by such persons, except to the extent such damages are found by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries so to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee. All amounts due under this Section 9.5 shall be payable promptly upon (but in any event not later than 30 days after) written demand therefor. Statements payable by the Borrower pursuant to this Section shall be submitted with reasonable supporting detail to the Borrower’s chief financial officer, at the address of the Borrower set forth in Section 9.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent (which shall promptly notify each Lender). The agreements in this Section 9.5 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender or the Issuing Lender. The agreements in Section 9.5 of the Existing Credit Agreement shall remain operative and in full force and effect regardless of the execution of this Agreement.

 

 

In no event shall any Indemnitee be liable on any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business or anticipated savings). The Borrower hereby waives, releases and agrees (and shall cause each other Loan Party to waive, release and agree) not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

 

To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent or the Issuing Lender under the immediately preceding paragraph, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent or the Issuing Lender, as the case may be, such Lender’s Aggregate Exposure Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought and determined as if no Lender were a Defaulting Lender) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Collateral Agent or the Issuing Lender in its capacity as such.

 

9.6           Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement or any other Loan Document without the prior written consent of the Administrative Agent and each Lender (and any attempted such assignment or transfer without such consents shall be null and void).

 

 

(b)           Any Lender may without the consent of, or notice to, the Borrower, any Agent, the Issuing Lender or any Lender, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other Persons (other than a natural person, an Excluded Lender and, except as expressly permitted under Section 9.6(i), other than to the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (each, a “Participant”) participations in all or any portion of such Lender’s rights and/or obligations under this Agreement and the other Loan Documents (including all or any portion of the Commitments and Loans owing to such Lender); provided that (i) such Lender’s obligations under this Agreement and the other Loan Documents 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 Agents, the Issuing Lender and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. For the avoidance of doubt, each Lender shall be responsible for the indemnity under the last paragraph of Section 9.5 with respect to any payments made by such Lender to its Participant(s). 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 the obligations of the Borrower relating to the Loans or Reimbursement Obligations and to approve any amendment, modification or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom; provided that such agreement or instrument may provide that such Lender will not, without the consent of the applicable Participant, agree to any amendment, modification, waiver or consent to any provisions of the Loan Documents to the extent that such amendment, modification, waiver or consent would forgive, waive or excuse the principal amount or extend the final scheduled date of maturity of any Loan or Reimbursement Obligation, or reduce the stated rate of any interest (other than the waiver of default interest) or fee payable hereunder, release all or substantially all of the Collateral or release all or substantially all of the value of the Subsidiary Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, in each case to the extent subject to, or related to, such participation. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (subject to the requirements and limitations set forth therein, including the requirements under Section 2.18(e) (it being understood that the documentation under Section 2.18(e) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.21 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 2.17, 2.18 or 2.19, with respect to any participation, than its participating Lender would have been entitled to receive, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.16 as though it were a Lender. For the avoidance of doubt, no assignments (including assignments of additional Term Loans) may be made to an Excluded Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain at one or more of its offices a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other rights or obligations under the Loan Documents (each such register, a “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Loans or other rights or obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Loan or other right or obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations provided that if any Participant requests compensation under Section 2.17, 2.18 and 2.19, such Participant shall provide to the Borrower and the Administrative Agent any documentation reasonably requested by the Borrower or the Administrative Agent. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, (i) the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register and (ii) no participations (including additional participations in Term Loans) may be made to an Excluded Lender.

 

(c)           Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.6, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of Information or other information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.14.

 

 

(d)           Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Person (other than a natural person, an Excluded Lender and, except as expressly permitted under Section 9.6(i), other than to the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (an “Assignee”), with the consent of the Issuing Lender, the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld or delayed), all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, executed by such Assignee and such Assignor (and, where the consent of the Borrower or any other Person is required pursuant to the foregoing provisions, by the Borrower and each such other Person) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such consent of the Issuing Lender need be obtained with respect to any assignment of the Term Loans and (ii) (A) no such consent of the Borrower shall be required (x) if such assignment is made to another Lender or any Affiliate or Approved Fund or Control Investment Affiliate thereof, (y) after the occurrence and during the continuance of an Event of Default under Sections 7(a) or (f) or (z) in the case of assignments during the primary syndication of the Commitments and Loans, to Persons identified by the Administrative Agent to the Borrower prior to the Closing Date, and (B) the consent of the Borrower shall be deemed to have been given if the Borrower has not responded within five Business Days of a request for such consent; provided, further, that no such assignment to an Assignee (other than any Lender or any Affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $2,500,000 with respect to Revolving Credit Loans or Revolving Credit Commitments and $1,000,000 with respect to Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless (i) otherwise agreed by the Borrower and the Administrative Agent or (ii) such assignment is one of two or more assignments being made simultaneously by or to affiliated Assignees or Approved Funds, the sum of the aggregate principal amounts of which is at least $2,500,000 with respect to Revolving Credit Loans or Revolving Credit Commitments and $1,000,000 with respect to Term Loans. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans and other interests as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto except as to Sections 2.17, 2.18, 2.20 and 9.5 in respect of the period prior to such effective date). Notwithstanding anything to the contrary contained herein, no such assignment shall be made (1) to the Borrower or any of the Borrower’s Subsidiaries or Affiliates except as expressly permitted under Section 9.6(i) or (2) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (2).

 

(e)            The Administrative Agent shall, solely for this purpose acting as an agent of the Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount and stated interest of the Revolving Extensions of Credit and Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Revolving Extensions of Credit, Term Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee (to the extent requested by such designated Assignee), and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Revolving Extensions of Credit and Term Loans) at any reasonable time and from time to time upon reasonable prior notice.

 

 

(f)            Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 9.6(d), by each such other Person), together with payment to the Administrative Agent of a registration and processing fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent) and an Administrative Questionnaire completed in respect of the Assignee (unless the Assignee shall already be a Lender hereunder) and all applicable tax forms, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Notes of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, new Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.

 

(g)            Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

 

(h)            Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Granting Lender’s and the Borrower’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, the Granting Lender shall remain solely responsible for the performance thereof, and the Borrower, the Lenders and the Agents shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under this Agreement and the other Loan Documents. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Loan shall agree between themselves as to which of them shall be entitled to grant or withhold any consent applicable to such Loan, but such Granting Lender shall communicate with the Administrative Agent and the Borrower as to the giving or withholding of such consent, and the parties to the Loan Documents shall be entitled to rely conclusively on the advice by such Granting Lender as to whether such consent is being granted or withheld.

 

(i)            Notwithstanding the foregoing, there shall be no assignments or participations to the Borrower or any of its Subsidiaries or Affiliates, except pursuant to and in accordance with the following: any Lender may assign all or a portion of its Term Loans to the Borrower or any of its Subsidiaries if (A) such assignment is made pursuant to a bid made in the open market to all Lenders through the Administrative Agent, (B) such assignment is not financed with the proceeds of any Revolving Credit Loans, (C) after giving effect to such purchase, the amount of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries at such time is greater than the outstanding amount of all Revolving Credit Loans and L/C Obligations then outstanding and (D) any Term Loans so purchased shall be immediately cancelled. Upon any purchase of Term Loans pursuant to this clause (i), the remaining scheduled repayments of the Term Loans shall be reduced on a pro rata basis by the principal amount of the Term Loans so purchased and cancelled.

 

(j)            None of the Lenders, the Arrangers or the Agents shall have any responsibility or liability for monitoring the list or identities of, or enforcing provisions relating to, Excluded Lenders. Upon request by any Lender, the Administrative Agent shall be permitted to disclose to such Lender the identity of the Excluded Lenders. Each Lender hereby acknowledges and agrees that the information disclosed to it by the Administrative Agent pursuant to the immediately preceding sentence shall be subject in all respects to the provisions set forth in Section 9.14.

 

 

9.7           Adjustments; Set-off. (a) Subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders, and other than with respect to any substituted Lender in accordance with Section 2.22 or as required or permitted under Section 2.20, 9.6(i) or 9.21, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 7(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owed to such other Lender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owed to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that (i) if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest, and (ii) the provisions of this Section 9.7 shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments to any assignee or participant, other than to the Borrower or any of its Subsidiaries or Affiliates (as to which the provisions of this Section 9.7 shall apply), made pursuant to and in accordance with the express provisions of this Agreement. The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a participation in a Loan or Reimbursement Obligation deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.

 

(b)           In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, while an Event of Default shall be continuing, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application; provided, further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set-off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.31 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 set-off.

 

 

9.8           Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement or of a Lender Addendum by facsimile transmission or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures 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.

 

9.9           Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

9.10         Integration. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Agents, represent the entire agreement of the Borrower, the Agents, the Arrangers, the Issuing Lender and the Lenders with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any Person (other than the parties hereto and thereto, their respective successors and assigns permitted hereunder (including any Affiliate of the Issuing Lender that issues any Letter of Credit) and, to the extent expressly contemplated hereby or thereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the Issuing Lender and the Lenders) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.

 

9.11         GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM, 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) OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN SUCH OTHER LOAN DOCUMENTS), SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.

 

 

9.12         Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and unconditionally:

 

(a)           submits for itself and its Property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;

 

(b)           consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(c)           agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower at its address set forth in Section 9.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;

 

(d)           agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and

 

(e)            agrees that it shall not assert, and hereby waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section or in Section 9.5 any special, exemplary, indirect, punitive or consequential damages.

 

 

9.13         No Fiduciary Duty. The Administrative Agent, the Collateral Agent, each Co-Syndication Agent, each Co-Documentation Agent, each Arranger, each Lender and their respective Affiliates (collectively, solely for purposes of this Section 9.13, the “Lender Parties”), may have economic interests that conflict with those of the Loan Parties, their respective stockholders and/or their respective Affiliates. Each Loan Party agrees that nothing in this Agreement, any of the other Loan Documents or any of the transactions contemplated hereby or thereby (or the process leading thereto) will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender Party, on the one hand, and such Loan Party, its stockholders or its Affiliates, on the other. The Loan Parties acknowledge and agree that (a) the transactions contemplated by the Loan Documents (including, without limitation, the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one hand, and the Loan Parties, on the other, and (b) in connection therewith and with the process leading thereto, (i) no Lender Party has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender Party has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (ii) each Lender Party is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees that (A) it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to the negotiation, execution and delivery of this Agreement and the other Loan Documents, the transactions contemplated by the Loan Documents and the process leading thereto, and (B) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Arrangers, the Agents, the Issuing Lender and the Lenders or among the Borrower and any of the foregoing. Each Loan Party agrees that it will not claim that any Lender Party has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.

 

9.14         Confidentiality. Each of the Agents, the Issuing Lender and each of the Lenders agrees to keep confidential all information provided to it by any Loan Party pursuant to this Agreement that is designated by such Loan Party as confidential; provided that nothing herein shall prevent any Agent, the Issuing Lender or any Lender from disclosing any such information (a) to any Arranger, any Agent, any other Lender or any Affiliate or Approved Fund of any thereof that agrees to comply with the provisions of this Section 9.14 or with provisions substantially similar to those included in this Section 9.14, (b) to any Participant, or Assignee, or pledgee of interests hereunder (each, a “Transferee”) or prospective Transferee that agrees to comply with the provisions of this Section 9.14 or with provisions substantially similar to those included in this Section 9.14, (c) to any of its employees, directors, trustees, agents, attorneys, accountants and other professional advisors, including any numbering, administration and settlement service providers, who are, or are expected to be, engaged in evaluating, approving, structuring or administering this Agreement or otherwise on a “need-to-know basis” if reasonably incidental to the administration of this Agreement (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, and each Agent, each Issuing Lender and each Lender shall be responsible for any breach hereof by such Agent’s, such Issuing Lender’s or such Lender’s, as applicable, employees, directors, trustees, agents, attorneys, accountants and other professional advisors), (d) to any financial institution that is a direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section 9.14 or with provisions substantially similar to those included in this Section 9.14), (e) upon the request or demand of any Governmental Authority (including, without limitation, bank regulatory authorities) having jurisdiction over it, (f) pursuant to any order of any court or other Governmental Authority (including, without limitation, bank regulatory authorities) or as may otherwise be required pursuant to any Requirement of Law, (g) in connection with any litigation or similar proceeding, (h) that has been publicly disclosed other than in breach of this Section, (i) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (j) in connection with the exercise of any remedy hereunder or under any other Loan Document or (k) with the prior written consent of the Borrower; provided that, in the case of disclosure pursuant to clauses (f) and (g) above (other than in connection with any routine audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority), to the extent not prohibited by law, such Person agrees to provide prompt written notice thereof to the Borrower.

 

 

9.15         Release of Collateral Security and Guarantee Obligations. Each Secured Party hereby further authorizes the Collateral Agent, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of the Secured Parties with respect to the guarantee contained in, and the Liens granted (or purported to be granted) upon the Collateral pursuant to, the Guarantee and Collateral Agreement and the other Security Documents, and with respect to the exercise by the Collateral Agent (or its sub-agents or designees) of any rights and remedies with respect to the Collateral as provided in the Loan Documents; provided that no Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Borrower Foreign Letter of Credit Obligations or Borrower Hedge Agreement Obligations (as such terms are defined in the Guarantee and Collateral Agreement). Subject to Section 9.1, without further written consent or authorization from any Secured Party, the Administrative Agent or the Collateral Agent, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 9.1) have otherwise consented or, (ii) release any Subsidiary Guarantor from its guarantee pursuant to the Guarantee and Collateral Agreement (including in connection with a transaction permitted by this Agreement) or with respect to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 9.1) have otherwise consented. or (iii) enter into intercreditor agreements with respect to Indebtedness to the extent the Administrative Agent or the Collateral Agent is otherwise contemplated herein as being a party to such intercreditor agreements, including a Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement.

 

(a)           Notwithstanding anything contained to the contrary contained in any of the Loan Documents, the Borrower, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the guarantee contained in, or the Lien upon the Collateral granted (or purported to be granted) pursuant to, the Guarantee and Collateral Agreement, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Lenders in accordance with the terms hereof, and all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent, and (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Agent at such sale or other disposition.

 

 

(b)           No Permitted Foreign Currency Letter of Credit, no Specified Cash Management Agreement and no Specified Hedge Agreement will create (or be deemed to create) in favor of any Foreign Currency L/C Issuing Lender that is the issuer thereof, Cash Management Bank that is a party thereto or Qualified Counterparty that is a party thereto, as applicable, any rights in connection with the management or release of any Collateral or of the obligations of any Subsidiary Guarantor under the Loan Documents except as expressly provided in Section 9.1 and Section 8.15 of the Guarantee and Collateral Agreement. By accepting the benefits of the Collateral, each Foreign Currency L/C Issuing Lender, each Cash Management Bank and each Qualified Counterparty shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Loan Documents as a Secured Party, subject to the limitations set forth in this Section 9.15.

 

(c)           Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Obligations have been paid in full (other than contingent obligations in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or written) has been made (and, in the case of Obligations for indemnification, no notice for indemnification has been issued by the indemnitee) at such time), all Commitments have terminated or expired and no Letter of Credit shall be outstanding (other than Letters of Credit that have been cash collateralized or backstopped in a manner reasonably acceptable to the relevant Issuing Lender and the Administrative Agent), the security interest in all Collateral and the guarantee obligations provided for in any Loan Document shall automatically terminate and be released and, upon the request of the Borrower, the Collateral Agent shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required to release its security interest in all Collateral, and to release all guarantee obligations provided for in any Loan Document.

 

9.16         Accounting Changes. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then 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. 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 GAAP or in any other 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 or, if applicable, the SEC.

 

9.17         [Reserved.]

 

9.18         WAIVERS 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 ACTION OR PROCEEDING 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 HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.18.

 

 

9.19         Lender Action. Each Lender and each Issuing Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, unless expressly provided for herein or in any other Loan Document, without the prior written consent of the Administrative Agent. The provisions of this Section 9.19 are for the sole benefit of the Lenders and the Issuing Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.

 

9.20         USA PATRIOT Act Notice. Each Lender subject to the USA PATRIOT Act, the Issuing Lender, the Administrative Agent and the Collateral Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and each other Loan Party that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and each other Loan Party, which information includes the name and address of the Borrower and other information that will allow such Lender, the Issuing Lender, the Administrative Agent or the Collateral Agent, as applicable, to identify the Borrower and each other Loan Party in accordance with the USA PATRIOT Act.

 

9.21         Loan Modification Offers. (a)The Borrower may at any time and from time to time request that all or a portion of the Tranche B-4 Term Loans or Other Term Loans (an “Existing Tranche”) be converted to extend the scheduled maturity date(s) of any payment or payments of principal (including at final maturity) with respect to such Tranche B-4 Term Loans or Other Term Loans (any such Tranche B-4 Term Loans or Other Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 9.21; provided that no more than two scheduled maturity dates in respect of any Loans may occur during any fiscal year of the Borrower. In order to establish Extended Term Loans, the Borrower shall provide written notice to the Administrative Agent (who shall provide a copy of such written notice to each of the Lenders under the applicable Existing Tranche) (each, a “Loan Modification Offer”) setting forth the terms and conditions of the Extended Term Loans to be established (which shall be identical in all material respects to the Tranche B-4 Term Loans or Other Term Loans, as the case may be, under the Existing Tranche from which such Extended Term Loans are to be converted except that (i) all or any of the scheduled amortization payments of principal and payment at maturity of the Extended Term Loans may be delayed to later dates than the scheduled amortization payments of principal and payment at maturity of the Tranche B-4 Term Loans or Other Term Loans, as the case may be, of such Existing Tranche, in each case to the extent provided in such Loan Modification Offer, (ii) the Applicable Margin, the Term SOFR “floor” set forth in the definition of Term SOFR and/or fees payable with respect to the Extended Term Loans may be different from the same provisions for the Tranche B-4 Term Loans of such Existing Tranche, in each case, to the extent provided in the Loan Modification Offer, (iii) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory prepayments hereunder, in each case as specified in the respective Loan Modification Offer, and (iv) the Loan Modification Offer may provide for other covenants and terms (A) that apply solely to any period after the latest final maturity of the Term Loans and Term Loan Commitments in effect on the effective date of the Loan Modification Offer immediately prior to the establishment of such Extended Term Loans, or after approval thereof by the Required Lenders or (B) that are less favorable to the holders of the Extended Term Loans than the covenants and terms applicable to the Existing Tranche). The Borrower shall provide the applicable Loan Modification Offer at least five Business Days prior to the date on which Lenders are requested to respond. Each Lender under the applicable Existing Tranche shall be afforded a pro rata opportunity to participate in any Loan Modification Offer (subject to notice and conditions to be agreed by the Borrower and the Administrative Agent in their reasonable discretion). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Tranche converted into Extended Term Loans pursuant to any Loan Modification Offer. Any Lender wishing to have all or a portion of its Term Loans of the applicable Existing Tranche subject to such Loan Modification Offer converted into Extended Term Loans (each such Lender, an “Extending Term Lender”) shall notify the Administrative Agent in writing (an “Extension Election”) on or prior to the date specified in such Loan Modification Offer of the amount of its Term Loans of the applicable Existing Tranche which it has elected to request be converted into Extended Term Loans (subject to any minimum denomination requirements set forth in such Loan Modification Offer). In the event that the aggregate amount of Term Loans of the applicable Existing Tranche subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request, Term Loans of the applicable Existing Tranche subject to Extension Elections shall be converted to Extended Term Loans on a pro rata basis based on the amount of Term Loans of the applicable Existing Tranche included in each such Extension Election.

 

 

(b)           The Borrower and any one or more Revolving Credit Lenders may from time to time agree that such Revolving Credit Lenders will establish Revolving Credit Commitments through the conversion of a previously established Revolving Credit Commitment of any such Revolving Credit Lender to an Extended Revolving Credit Commitment of such Lender (any Revolving Credit Commitments being established in accordance with this Section 9.21(b) an “Extended Revolving Credit Commitment”, which for the avoidance of doubt, shall also be a Revolving Credit Commitment) by executing and delivering to the Administrative Agent a notice (a “Revolving Extension Notice”; each Revolving Extension Notice and each Loan Modification Offer being an “Extension”) specifying (i) the amount of Extended Revolving Credit Commitments established thereby, (ii) the Revolving Credit Termination Date for such Extended Revolving Credit Commitments; provided that the Revolving Credit Termination Date for any Extended Revolving Credit Commitments shall in no event be earlier than the Revolving Credit Termination Date for the Revolving Credit Commitments established on the Closing Date and there shall not be more than three Revolving Credit Termination Dates in effect at any time, (iii) the Applicable Margin for Revolving Credit Loans and fees in respect of participations in Letters of Credit pursuant to such Extended Revolving Credit Commitments and the commitment fee payable with respect to such Extended Revolving Credit Commitments; provided that (A) in no event shall there be more than three Applicable Margins in effect in the aggregate for all Revolving Credit Commitments at any time and (B) either (x) the Applicable Margins for Revolving Credit Loans, fees in respect of participations in Letters of Credit and the commitment fee for all Revolving Credit Commitments that have the same Revolving Credit Termination Date shall be the same (although different upfront fees may be paid by Borrower) or (y) the maximum number of Revolving Credit Termination Dates permitted to be in effect at any time shall be reduced by the number of such different Applicable Margins and fees in excess of one applicable to Revolving Credit Commitments with the same Revolving Termination Date, and (iv) whether clause (ii) above shall be amended to provide that future Extended Revolving Credit Commitments may not have a Revolving Credit Termination Date prior to the Revolving Credit Termination Date for such Extended Revolving Credit Commitments. Except as set forth above, the terms of the Extended Revolving Credit Commitments shall be identical in all material respects to the Revolving Credit Commitments established on the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion, provided that all Revolving Credit Lenders shall be afforded a pro rata opportunity to participate in any Extensions (subject to notice and conditions to be agreed by Borrower and the Administrative Agent in their reasonable discretion). On each date on which Extended Revolving Credit Commitments are established, each Revolving Credit Lender shall purchase at par from and/or sell at par to each of the other Revolving Credit Lenders such portions of the outstanding Revolving Credit Loans, if any, as may be specified by the Administrative Agent so that, immediately following such purchases, all SOFR Loans and all Base Rate Loans that are Revolving Credit Loans shall be held by the Revolving Credit Lenders on a pro rata basis in accordance with their respective Revolving Credit Percentages.

 

(c)           No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (i) the consent of each Term Lender agreeing to a Loan Modification Offer as evidenced by its delivery of an Extension Election, (ii) the consent of each Revolving Credit Lender agreeing to an Extended Revolving Credit Commitment as evidenced by its execution of a Revolving Extension Notice and (iii) with respect to the establishment of any Extended Revolving Credit Commitment, the consent of the Issuing Lender and the Administrative Agent. All Extended Term Loans, Extended Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Revolving Credit Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 9.21 (and the Administrative Agent is hereby directed to enter into any such amendments). Without limiting the foregoing, in connection with the establishment of any Extended Term Loans or Extended Revolving Credit Commitments, the respective Loan Parties shall (at their sole expense) amend (and the Administrative Agent is hereby authorized and directed to amend) any applicable Security Document that has a maturity date prior to the then latest maturity date of any Extended Term Loans or Extended Revolving Credit Commitments so that such shorter maturity date is extended to the then latest maturity date (or such later date as may be advised by counsel to the Administrative Agent).

 

 

9.22         Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of the Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrower.

 

9.23         Effect of Restatement. This Agreement shall, except as otherwise expressly set forth herein, supersede the Existing Credit Agreement from and after the Restatement Date and from and after the Restatement Funding Date with respect to the Loans and Letters of Credit outstanding under the Existing Credit Agreement as of the Restatement Date and as of the Restatement Funding Date. The parties hereto acknowledge and agree, however, that (a) this Agreement and all other Loan Documents executed and delivered herewith do not constitute a novation, payment and reborrowing or termination of the Obligations (under and as defined in the Existing Credit Agreement) and the other Loan Documents as in effect prior to the Restatement Date except as expressly provided for in the Amendment Agreement and as contemplated by Section 3.16 hereof and (b) such Obligations are in all respects continuing (except as expressly provided for in the Amendment Agreement and as contemplated by Section 3.16 hereof) with only the terms being modified as provided in this Agreement and the other Loan Documents. The parties hereto further acknowledge and agree that (i) the liens and security interests in favor of the Collateral Agent for the benefit of the Secured Parties securing payment of the Obligations (under and as defined in the Existing Credit Agreement) are in all respects continuing and in full force and effect with respect to all Obligations and (ii) all references in the other Loan Documents to the Existing Credit Agreement shall be deemed to refer without further amendment to this Agreement. In addition, unless specifically amended hereby, each of the Loan Documents and Exhibits and Schedules to the Existing Credit Agreement shall continue in full force and effect and, if applicable, in the forms attached to the Existing Credit Agreement, and with the effect that from and after the Restatement Date all references therein shall be references to this Agreement.

 

9.24         Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

 

(a)           the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

 

(b)           the effects of any Bail-in Action on any such liability, including, if applicable:

 

(i)              a reduction in full or in part or cancellation of any such liability;

 

(ii)             a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)            the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.

 

9.25         Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States), in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

 

[Signature Pages Follow]

 

 

Exhibit 10.2

 

Execution Version

 

 

COLLATERAL AGREEMENT

 

by and among

 

B&G FOODS, INC.

 

and

 

Certain Subsidiaries of B&G FOODS, INC., as Grantors

 

in favor of

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Notes Collateral Agent

 

Dated as of September 26, 2023

 

 

 

Table of Contents

 

Page

 

SECTION 1.

DEFINED TERMS

1

 

	1.1.	Definitions	1
	1.2.	Other Definitional Provisions	8

 

SECTION 2.

GRANT OF SECURITY INTEREST

8

 

	2.1.	Grant of Security	8
	2.2.	Security for Secured Obligations	9
	2.3.	Continuing Liability Under Collateral	10

 

SECTION 3.

REPRESENTATIONS AND WARRANTIES

10

 

	3.1.	Reserved	10
	3.2.	Title; No Other Liens	10
	3.3.	Perfected First Priority Liens	10
	3.4.	Name; Jurisdiction of Organization; Identification Number; Chief Executive Office	11
	3.5.	Inventory and Equipment	11
	3.6.	Farm Products, Etc.	11
	3.7.	Collateral Identification	11
	3.8.	Pledged Securities	11
	3.9.	Receivables	12
	3.10.	Commercial Tort Claims	12
	3.11.	Intellectual Property	13
	3.12.	Vehicles	14

 

SECTION 4.

COVENANTS

14

 

	4.1.	Reserved	14
	4.2.	Delivery and Control Requirements	14
	4.3.	Maintenance of Insurance	15
	4.4.	Payment of Secured Obligations	16
	4.5.	Maintenance of Perfected Security Interest; Further Documentation	16
	4.6.	Changes in Locations, Name, Jurisdiction of Incorporation, etc.	17
	4.7.	Notices	17
	4.8.	Pledged Securities	17
	4.9.	Receivables	19
	4.10.	Commercial Tort Claims	19
	4.11.	Intellectual Property	19
	4.12.	Deposit Accounts, Securities Accounts, Etc.	21

 

 

SECTION 5.

REMEDIAL PROVISIONS

22

 

	5.1.	Certain Matters Relating to Receivables	22
	5.2.	Communications with Obligors; Grantors Remain Liable	22
	5.3.	Pledged Stock	23
	5.4.	Proceeds to be Turned Over To Notes Collateral Agent	24
	5.5.	Application of Proceeds	25
	5.6.	Code and Other Remedies	26
	5.7.	Pledged Stock	27
	5.8.	Waiver; Deficiency	27
	5.9.	Grant of Intellectual Property License	27

 

SECTION 6.

THE NOTES COLLATERAL AGENT

28

 

	6.1.	Notes Collateral Agent’s Appointment as Attorney-in-Fact, etc.	28
	6.2.	Duty of Notes Collateral Agent	29
	6.3.	Financing Statements	30
	6.4.	Authority of Notes Collateral Agent	30
	6.5.	Rights and Protections of the Notes Collateral Agent	30

 

SECTION 7.

MISCELLANEOUS

30

 

	7.1.	Amendments in Writing	30
	7.2.	Notices	30
	7.3.	No Waiver by Course of Conduct; Cumulative Remedies	30
	7.4.	Enforcement Expenses; Indemnification	31
	7.5.	Successors and Assigns	31
	7.6.	Reserved	32
	7.7.	Counterparts	32
	7.8.	Severability	32
	7.9.	Section Headings	32
	7.10.	Integration	32
	7.11.	GOVERNING LAW	32
	7.12.	Submission To Jurisdiction; Waivers	33
	7.13.	Reserved	33
	7.14.	Additional Grantors	33
	7.15.	Releases	33
	7.16.	WAIVER OF JURY TRIAL	34
	7.17.	Intercreditor Agreement	34

 

SCHEDULES:

 

1	Notice Addresses
2	Collateral Identification
3	Filings and Other Actions Required to Perfect Security Interests
4	Jurisdiction of Organization, Identification Number and Location of Chief Executive Office
5	Locations of Inventory and Equipment
6	Copyrights and Exclusive Copyright Licenses, Patents and Trademarks
7	[Reserved]
8	Commercial Tort Claims

 

 

EXHIBITS:

 

A	Acknowledgment and Consent
B	Assumption Agreement
C	Trademark Security Agreement
D	Patent Security Agreement
E	Copyright Security Agreement

 

 

COLLATERAL AGREEMENT

 

This COLLATERAL AGREEMENT, dated as of September 26, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), is entered into by and among B&G FOODS, INC., a Delaware corporation (the “Issuer”), each of the Guarantors party hereto from time to time, whether as an original signatory hereto or as an Additional Grantor (each such Guarantor, together with the Issuer, a “Grantor” and collectively, the “Grantors”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as collateral agent (in such capacity, together with its successors and assigns in such capacity, the “Notes Collateral Agent”).

 

W I T N E S S E T H:

 

WHEREAS, the Issuer, the Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (in such capacity, together with its successors and assigns in such capacity, the “Trustee”) and as Notes Collateral Agent, are entering into that certain Indenture, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Indenture”);

 

WHEREAS, pursuant to the Indenture, the Issuer is issuing 8.00% Senior Secured Notes due 2028 (the “Notes”), and the Issuer’s obligations under the Indenture and the Notes will be guaranteed by the Guarantors;

 

WHEREAS, the Issuer and the other Grantors are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the transactions contemplated by the Indenture; and

 

WHEREAS, pursuant to the Indenture, the Issuer and the Grantors have agreed to grant a security interest in the Collateral in favor of the Notes Collateral Agent (for the ratable benefit of the Secured Parties) to secure the payment and performance of the Secured Obligations, subject to the terms of the Pari Passu Intercreditor Agreement, including with respect to the relative rights and priorities in respect of the Collateral;

 

NOW, THEREFORE, in consideration of the premises and to induce the Trustee and the Notes Collateral Agent to enter into the Indenture and to induce the Holders to purchase the Notes, each Grantor hereby agrees with the Notes Collateral Agent, for the ratable benefit of the Secured Parties, as follows:

 

SECTION 1.  DEFINED TERMS

 

1.1.            Definitions.

 

(a)            Unless otherwise defined herein, terms defined in the Indenture and used herein shall have the meanings given to them in the Indenture and the following terms which are defined in Articles 8 and 9 of the UCC are used herein as so defined: Accounts, Account Debtor, As-Extracted Collateral, Bank, Certificated Security, Chattel Paper, Commercial Tort Claims, Commodity Account, Commodity Contract, Commodity Intermediary, Deposit Accounts, Documents, Electronic Chattel Paper, Entitlement Orders, Equipment, Farm Products, Goods, Health-Care-Insurance Receivables, Instruments, Inventory, Letter of Credit Rights, Manufactured Homes, Money, Records, Securities Accounts, Securities Intermediary, Security Entitlement, Supporting Obligations and Uncertificated Securities.

 

 

(b)            The following terms shall have the following meanings:

 

“Agreement”: as defined in the preamble hereto.

 

“Capital Stock Issuer”: the collective reference to each issuer of a Pledged Security.

 

“Collateral”: as defined in Section 2.

 

“Collateral Account”: any collateral account established by the Notes Collateral Agent as provided in Section 5.1 or 5.4.

 

“Collateral Records”: all books, records, ledger cards, files, correspondence, customer lists, supplier lists, blueprints, technical specifications, manuals, computer software and related documentation, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.

 

“Collateral Support”: all personal property assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a security interest or Lien in such personal property.

 

“Copyright Licenses”: all written agreements to which a Grantor is a party, in which a grantor grants or receives a license or similar right in, to, or under any Copyright, or otherwise providing for a covenant not to sue for infringement or other violation of any Copyright (including, without limitation, those exclusive copyright licenses for U.S. copyright registrations listed in Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time)).

 

“Copyrights”: all United States and foreign copyrights, whether registered or unregistered and whether published or unpublished, and (i) all registrations and applications therefor, including those listed in Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time), (ii) all extensions and the right to obtain all renewals thereof, (iii) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (iv) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and (v) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

“Credit Agreement”: that certain Amended and Restated Credit Agreement, dated as of October 2, 2015, among B&G Foods, Inc., as the borrower, the guarantors party thereto, the lenders from time to time party thereto, and Barclays Bank PLC, as administrative agent, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time, including by that certain First Amendment to the Credit Agreement, dated as of March 30, 2017, that certain Second Amendment to the Credit Agreement, dated as of November 20, 2017, that certain Third Amendment to Credit Agreement dated as of October 10, 2019, that certain Fourth Amendment to the Credit Agreement dated as of December 16, 2020, that certain Fifth Amendment to the Credit Agreement dated as of June 28, 2022, that certain Sixth Amendment to the Credit Agreement, dated as of June 6, 2023 and that certain Seventh Amendment to the Credit Agreement that will become effective prior to the execution of the Indenture. Notwithstanding the foregoing, solely for purposes of this Agreement, the “Credit Agreement” will not include any Indebtedness that is not secured by the Collateral.

 

 

“Excluded Assets”: the collective reference to (i) any Capital Stock of any Foreign Subsidiary or Foreign Subsidiary Holding Company that is directly owned by one or more of the Grantors in excess of 65% of the voting Capital Stock of such Foreign Subsidiary or Foreign Subsidiary Holding Company, as applicable, (ii) any Capital Stock of any Foreign Subsidiary or Foreign Subsidiary Holding Company that is not directly owned by any Grantor, (iii) any real property and any interests therein, (iv) any contract, General Intangible, Intellectual Property, Copyright License, Patent License, Trademark License or Trade Secret License (“Intangible Assets”), if and only for so long as the grant of a security interest hereunder (A) is prohibited by any law, rule or regulation applicable to such Grantor, (B) requires a consent from any Governmental Authority that has not been made or obtained or (C) shall constitute or result in a breach, contractual violation, termination or default of any term or provision of any such Intangible Assets (other than to the extent that any such law, rule or regulation, requirement to obtain consent, term or provision, as applicable, would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or any other applicable law or principles of equity); provided, however, that the Collateral shall include (and such security interest shall attach) immediately (A) at such time as such law, rule, regulation, requirement to obtain consent, term or provision, as applicable, shall no longer be applicable to such Intangible Assets and (B) to the extent severable, any portion of such Intangible Assets that does not result in any of the consequences specified above, (v) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law, (vi) any personal property now owned or hereafter acquired by any Grantor that is subject to a purchase money Lien or a capital lease permitted under the Indenture if the contractual obligation pursuant to which such Lien is granted (or the documentation providing for such purchase money Lien or capital lease) prohibits the creation by such Grantor of a Lien thereon or requires the consent of any Person other than the Issuer and its Affiliates, which consent has not been obtained, as a condition to the creation of any other Lien on such property, (vii) any Deposit Account established solely for the purpose of funding payroll, payroll taxes and other compensation and benefits to employees; and (viii) any asset as to which the Issuer reasonably determines that the costs (time, expense or otherwise) of obtaining a security interest in or Lien upon such assets are excessive in relation to the benefits to the Secured Parties of the security afforded thereby; provided that such assets do not secure the Credit Agreement.

 

 

“General Intangibles”: all “general intangibles” as such term is defined in Section 9-102 of the UCC and, in any event, including, without limitation, with respect to any Grantor, all contracts, agreements, instruments and indentures in any form, and portions thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor or any property of such Grantor is subject, as the same may from time to time be amended, supplemented or otherwise modified, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of such Grantor to damages arising thereunder and (iii) all rights of such Grantor to perform and to exercise all remedies thereunder.

 

“Grantor” and “Grantors”: each, as defined in the preamble hereto.

 

“Guarantors”: as defined in the Indenture.

 

“Indemnitee”: as defined in Section 7.4(c).

 

“Indenture”: as defined in the recitals hereto.

 

“Insurance”: (i) all insurance policies covering any or all of the Collateral (regardless of whether the Notes Collateral Agent is the loss payee thereof) and (ii) any key man life insurance policies.

 

“Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets and the Trade Secret Licenses, and all rights to sue at law or in equity or otherwise recover for any past, present and future infringement, dilution, misappropriation or other violation or impairment thereof, including the right to receive all Proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.

 

“Intercompany Note”: any promissory note evidencing loans made by any Grantor to the Issuer or any of its Subsidiaries.

 

“Investment Property”: the collective reference to (i)  all “investment property” as such term is defined in Section 9-102(a)(49) of the UCC and (ii) whether or not constituting “investment property” as so defined, all Pledged Notes and all Pledged Stock.

 

“Issuer”: as defined in the preamble hereto.

 

 

“Majority Holders”: Holders holding a majority of the aggregate principal amount of the outstanding Notes, as determined in accordance with the applicable provisions of the Indenture.

 

“Material Adverse Effect”: a material adverse effect on (i) the business, assets, property or financial condition of the Issuer and its Subsidiaries taken as a whole or (ii) the validity or enforceability of this Agreement, the Indenture, the Notes or the Note Guarantees, taken as a whole, or the rights or remedies of the Trustee, the Notes Collateral Agent or the Holders of Notes, as applicable, hereunder or thereunder, taken as a whole.

 

“Notes”: as defined in the recitals hereto.

 

“Notes Documents”: the Notes, the Security Documents (including this Agreement), the Note Guarantees and the Indenture.

 

“Notes Collateral Agent”: as defined in the preamble hereto.

 

“Ordinary Course Transferees”: (i) with respect to Goods only, buyers in the ordinary course of business and lessees in the ordinary course of business to the extent provided in Section 9-320(a) and 9-321 of the UCC as in effect from time to time in the relevant jurisdiction, (ii) with respect to General Intangibles only, licensees in the ordinary course of business to the extent provided in Section 9-321 of the UCC as in effect from time to time in the relevant jurisdiction and (iii) any other Person who is entitled to take free of the Lien pursuant to the UCC as in effect from time to time in the relevant jurisdiction.

 

“Pari Passu Intercreditor Agreement”: (i) that certain Pari Passu Intercreditor Agreement, dated as of the date hereof, among the Issuer, each Subsidiary Guarantor, Barclays Bank PLC, as Initial First Lien Representative and Initial First Lien Collateral Agent (each as defined therein), the Notes Collateral Agent, as the Initial Other Representative and the Initial Other Collateral Agent (each as defined therein), and the other parties from time to time party thereto and (ii) any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of such Pari Passu Intercreditor Agreement.

 

“Patent License”: all agreements to which a Grantor is a party, in which a Grantor grants or receives a license or similar right in, to, or under any Patent, or otherwise providing for a covenant not to sue for infringement or other violation of any Patent.

 

“Patents”: all United States and foreign patents and certificates of invention or similar industrial property rights, and applications for any of the foregoing, including (i) each patent and patent application listed on Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time), (ii) all reissues and extensions thereof, (iii) all divisions, continuations and continuations-in-part thereof, (iv) all patentable inventions and improvements thereto, (v) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (vi) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto and (vii) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

 

“Pledged Notes”: all promissory notes listed on Schedule 2 (as such schedule may be amended or supplemented by the Issuer from time to time), all Intercompany Notes at any time issued to any Grantor and all other promissory notes issued to or held by any Grantor (other than promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary course of business).

 

“Pledged Securities”: the collective reference to the Pledged Notes and the Pledged Stock.

 

“Pledged Stock”: all Capital Stock owned by such Grantor, including, without limitation, the Capital Stock listed on Schedule 2 (as such schedule may be amended or supplemented by the Issuer from time to time), together with any other shares, stock certificates, interests, options or rights of any nature whatsoever in respect of the Capital Stock of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect; provided that Excluded Assets shall not constitute Pledged Stock.

 

“Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the UCC and, in any event, including, without limitation, all dividends or other income from Investment Property, collections thereon or distributions or payments with respect thereto.

 

“Receivable”: any right to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or for services rendered or to be rendered, including, without limitation all such rights constituting or evidenced by any Account, Chattel Paper, Instrument or General Intangible, together with all of Grantor’s rights, if any, in any goods or other property giving rise to such right to payment and all Collateral Support and Supporting Obligations related thereto and all Receivables Records.

 

“Receivables Records”: (i) all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors, secured parties or agents thereof, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or non-written forms of information related in any way to the foregoing or any Receivable.

 

 

“Secured Obligations”: means “Secured Notes Obligations,” as such term is defined under the Indenture.

 

“Secured Parties”: means “Secured Parties,” as such term is defined under the Indenture.

 

“Securities Act”: the Securities Act of 1933, as amended.

 

“Subsidiary Guarantors”: the collective reference to each Grantor other than the Issuer.

 

“Trademark License”: all agreements to which a Grantor is a party, in which a Grantor grants or receives a license or similar right in, to, or under any Trademark or otherwise providing for a covenant not to sue for infringement, dilution, or other violation of any Trademark.

 

“Trademarks”: all United States, and foreign trademarks, trade names, trade dress, corporate names, company names, business names, fictitious business names, Internet domain names, trade styles, service marks, logos and other source or business identifiers and designs, now existing or hereafter adopted or acquired, whether or not registered, and with respect to any and all of the foregoing: (i) all registration and applications therefore, including those listed on Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time), (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (iv) the right to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing or for any injury to the related goodwill, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

“Trade Secret Licenses”: all agreements to which a Grantor is a party, in which a Grantor grants or receives a license or similar right in, to, or under any Trade Secret.

 

“Trade Secrets”: all trade secrets and all other confidential or proprietary information that derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and (i) the right to sue or otherwise recover for any past, present and future misappropriation or other violation thereof, (ii) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and (iii) all other rights of any kind accruing thereunder or pertaining thereto throughout the world.

 

“Trustee”: as defined in the recitals hereto.

 

“UCC”: shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies and for purposes of definitions related to such provisions.

 

 

“Vehicles”: all cars, trucks, trailers, construction and earth moving equipment and other vehicles covered by a certificate of title law of any state and all tires and other appurtenances to any of the foregoing.

 

1.2.           Other Definitional Provisions.

 

(a)            The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Exhibit and Schedule references are to this Agreement unless otherwise specified.

 

(b)            The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

(c)             Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.

 

SECTION 2.  GRANT OF SECURITY INTEREST

 

2.1.           Grant of Security. Each Grantor hereby pledges and collaterally assigns and transfers to the Notes Collateral Agent, for the ratable benefit of the Secured Parties, and hereby grants to the Notes Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in and continuing lien on, all of such Grantor’s right, title and interest in, to and under all personal property of such Grantor, including, but not limited to, the following, in each case, wherever located and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Collateral”):

 

(i)             all Accounts;

 

(ii)            all Chattel Paper;

 

(iii)           all Collateral Accounts;

 

(iv)           all Commercial Tort Claims described on Schedule 8 (as such schedule may be amended or supplemented by the Issuer from time to time);

 

(v)            all Deposit Accounts;

 

(vi)           all Documents;

 

(vii)          all Equipment (other than Vehicles);

 

 

(viii)         all General Intangibles;

 

(ix)            all Instruments;

 

(x)             all Insurance;

 

(xi)            all Intellectual Property;

 

(xii)           all Inventory;

 

(xiii)          all Investment Property, and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of, or in exchange for, any or all Capital Stock or other shares, interests or certificates in respect thereof;

 

(xiv)         all Letter of Credit Rights;

 

(xv)          all Money;

 

(xvi)         all Receivables and Receivables Records;

 

(xvii)        all Securities Accounts;

 

(xviii)       all Goods and other personal property not otherwise described above;

 

(xix)          all books, records, ledger cards, files, correspondence, customer lists, supplier lists, blueprints, technical specifications, manuals, computer software and related documentation, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time pertain to or evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and

 

(xx)            to the extent not otherwise included, all other property of such Grantor and all Proceeds, products, accessions, rents and profits of any and all of the foregoing and all Collateral Records, Collateral Support and Supporting Obligations and guarantees given by any Person with respect to any of the foregoing;

 

provided that the Collateral shall not include any Excluded Assets.

 

2.2.            Security for Secured Obligations. The Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all Secured Obligations.

 

 

2.3.           Continuing Liability Under Collateral. Notwithstanding anything herein to the contrary, (a) each Grantor shall remain liable for all obligations under the Collateral and nothing contained herein is intended to or shall be a delegation of duties to the Notes Collateral Agent or any Secured Party, (b) each Grantor shall remain liable under and each of the agreements included in the Collateral, including, without limitation, any Receivables and any agreements relating to the Pledged Stock, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither the Notes Collateral Agent nor any Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall the Notes Collateral Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including, without limitation, any agreements relating to any Receivables or the Pledged Stock and (c) the exercise by the Notes Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.

 

SECTION 3.  REPRESENTATIONS AND WARRANTIES

 

Each Grantor hereby represents and warrants to the Notes Collateral Agent that:

 

3.1.            Reserved.

 

3.2.           Title; No Other Liens. Except for the security interest granted to the Notes Collateral Agent for the ratable benefit of the Secured Parties pursuant to this Agreement and the other Liens permitted to exist or be incurred on the Collateral by the Indenture, such Grantor owns each item of the Collateral free and clear of any and all Liens or claims of others. No financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of the Notes Collateral Agent, for the ratable benefit of the Secured Parties, pursuant to this Agreement or as are permitted by Section 4.12 of the Indenture.

 

3.3.           Perfected First Priority Liens. Subject to the Pari Passu Intercreditor Agreement, the security interests granted pursuant to this Agreement, upon completion of the filings and other actions specified on Schedule 3 (all of which, in the case of all filings and other documents referred to on said Schedule, have been delivered to the Notes Collateral Agent (or to the Applicable Collateral Agent (as defined in the Pari Passu Intercreditor Agreement) pursuant to the terms of the Pari Passu Intercreditor Agreement) in duly completed and, if applicable, duly executed form), (a) will constitute valid perfected security interests (except Money which is not in the possession of the Notes Collateral Agent or as expressly provided herein and except to the extent perfection is not required by this Agreement) in all of the Collateral subject hereto on the date hereof in favor of the Notes Collateral Agent, for the ratable benefit of the Secured Parties, as collateral security for such Grantor’s Secured Obligations, enforceable in accordance with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase any Collateral from such Grantor (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing) other than Ordinary Course Transferees, and (b) are prior to all other Liens on the Collateral in existence on the date hereof, except for Liens permitted by Section 4.12 of the Indenture which have priority over, or are pari passu with, the Liens on the Collateral.

 

 

3.4.            Name; Jurisdiction of Organization; Identification Number; Chief Executive Office. Such Grantor’s exact legal name (as indicated on the public record of such Grantor’s jurisdiction of organization) and jurisdiction of organization are specified on Schedule 4 (as such schedule may be amended or supplemented by the Issuer from time to time). On the date hereof, such Grantor’s identification number from the jurisdiction of organization (if any), and the location of such Grantor’s chief executive office or sole place of business, as the case may be, are specified on Schedule 4. Each Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction. On the date hereof, except as specified on Schedule 4, each Grantor has not changed its name or jurisdiction of organization within the past five years. On the date hereof, except as specified on Schedule 4, each Grantor has not changed its chief executive office or sole place of business or its corporate structure in any way (e.g. by merger, consolidation, change in corporate form or otherwise) within the past five years and has not within the last five years become bound (whether as a result of merger or otherwise) as Grantor under a security agreement entered into by another Person, which has not heretofore been terminated or is in respect of a Lien that is not permitted by Section 4.12 of the Indenture. Notwithstanding anything to the contrary in this Agreement, the Indenture or any other Notes Document, the failure to amend or supplement Schedule 4 shall not constitute a Default or an Event of Default if the Issuer has delivered corresponding notice as and when required by Section 4.6 hereof.

 

3.5.            Inventory and Equipment. On the date hereof, all material Inventory and Equipment (other than mobile goods) are kept at the locations listed on Schedule 5.

 

3.6.            Farm Products, Etc. None of the Collateral constitutes, or is the Proceeds of, (a) Farm Products, (b) As-Extracted Collateral, (c) Manufactured Homes, (d) Health-Care-Insurance Receivables, (e) timber to be cut, or (f) aircraft, aircraft engines, satellites, ships or railroad rolling stock.

 

3.7.            Collateral Identification. On the date hereof, Schedule 2 hereto sets forth (a) under the heading “Pledged Stock”, all of the Pledged Stock owned by any Grantor and (b) under the heading “Pledged Notes”, all of the Pledged Notes owned by any Grantor. On the date hereof, Schedule 2 sets forth (a) under the headings “Securities Accounts,” “Commodity Accounts,” and “Deposit Accounts” respectively, all of the Securities Accounts, Commodity Accounts and Deposit Accounts in which each Grantor has an interest and (b) under the heading “Letter of Credit Rights”, all of the Letter of Credit Rights in which each Grantor has an interest.

 

3.8.            Pledged Securities.

 

(a)            The Pledged Stock pledged by such Grantor hereunder constitutes all of the issued and outstanding Capital Stock of each Capital Stock Issuer owned directly by such Grantor (or 65% of the voting Capital Stock of each Capital Stock Issuer that is a Foreign Subsidiary or a Foreign Subsidiary Holding Company owned directly by such Grantor).

 

(b)            All of the Pledged Stock has been duly and validly issued and, to the extent applicable, is fully paid and nonassessable.

 

 

(c)             Each of the Intercompany Notes has been duly authorized, authenticated or issued, and delivered (subject to the Pari Passu Intercreditor Agreement) and constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms, and, to such Grantor’s knowledge, each of the other Pledged Notes has been duly authorized, authenticated or issued, and delivered and constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms, in each case, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. No obligor with respect to any Pledged Note has any defense, offset or contribution regarding payment of such Pledged Note.

 

(d)             Such Grantor is the record and beneficial owner of, and has good and marketable title to, the Pledged Securities pledged by it hereunder, free of any and all Liens or options in favor of, or claims of, any other Person, except the security interest created by this Agreement and liens permitted by the Indenture which attach to such Pledged Securities without such Grantor’s consent.

 

(e)            To such Grantor’s knowledge, no consent of any Person including any other shareholder or any other trust beneficiary is necessary in connection with the creation, perfection, or priority status described in Section 3.3 of the security interest of the Notes Collateral Agent in any Pledged Securities pledged by it hereunder or the exercise by the Notes Collateral Agent of the voting or other rights provided for in this Agreement with respect thereto or the exercise of remedies in respect thereof except such as have been obtained.

 

(f)             To the extent the Notes Collateral Agent has requested such acknowledgment and consent in writing (acting at the written direction of the Majority Holders) and the Issuer has been able to obtain the following after the use of commercially reasonable efforts, each applicable Capital Stock Issuer that is not a Grantor hereunder has executed and delivered to the Notes Collateral Agent an acknowledgment and consent, substantially in the form of Exhibit A, to the pledge of the Pledged Stock pursuant to this Agreement.

 

3.9.            Receivables.

 

(a)             No amount in excess of $1,000,000 individually or $5,000,000 in the aggregate (or such greater amount or amounts set forth in any applicable Credit Agreement) payable to such Grantor under or in connection with any Receivable is evidenced by any Instrument or Chattel Paper which has not been, subject to the Pari Passu Intercreditor Agreement, delivered to the Notes Collateral Agent in accordance with the requirements hereof.

 

(b)             None of the obligors on any Receivables in excess of 5% of the aggregate amount of the then outstanding Receivables (other than Receivables with respect to refunds of Taxes) is a Governmental Authority.

 

3.10.          Commercial Tort Claims. No Grantor has any Commercial Tort Claim in excess of $1,000,000 individually or $5,000,000 in the aggregate (or such greater amount or amounts set forth in any applicable Credit Agreement), except as specifically described on Schedule 8 (as such schedule may be amended or supplemented by the Issuer from time to time).

 

 

3.11.         Intellectual Property.

 

(a)           As of the most recently filed quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K (regardless of whether the Issuer is then required to file such reports), with respect to material Intellectual Property and to the extent not previously disclosed to the agent under the Credit Agreement or, if no Pari Passu Intercreditor Agreement is then in effect, the Notes Collateral Agent, Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time) listed, with respect to Intellectual Property owned by such Grantor in its own name all pending or issued Patents, registered Copyrights, registrations and applications included in the Trademarks and all written Copyright Licenses that grant exclusive rights to any of the Grantors in U.S. copyright registrations. The Notes Collateral Agent acknowledges and agrees that Grantors do not make any representations or warranties relating to Intellectual Property in jurisdictions other than in the United States.

 

(b)            Except as set forth in Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time) and except as would not have a Material Adverse Effect, (i) all material Intellectual Property owned by such Grantor in its own name is subsisting, unexpired, has not been abandoned and, to the knowledge of such Grantor, is enforceable, valid and does not infringe, misappropriate, dilute or otherwise violate any intellectual property right of any other Person and (ii) to the knowledge of such Grantor, no material written claim has been made that such Intellectual Property owned by such Grantor (or any of its respective licensees) infringes, misappropriates, dilutes or otherwise violates the asserted Intellectual Property rights of any other Person.

 

(c)            Except as set forth in Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time) and except as would not have a Material Adverse Effect, to the knowledge of such Grantor, no final holding, decision or judgment has been rendered by any Governmental Authority which would limit, cancel or question the validity, enforceability or scope of, or such Grantor’s rights in, any material Intellectual Property.

 

(d)            Except as set forth in Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time) and except as would not have a Material Adverse Effect, no action or proceeding is pending against such Grantor or, to the knowledge of such Grantor, is threatened against such Grantor, (i) seeking to limit, cancel or question the validity or enforceability of any material Intellectual Property owned by such Grantor, seeking to challenge such Grantor’s ownership interest therein or (ii) which, if adversely determined, could reasonably be expected to have a material adverse effect on the value of any material Intellectual Property owned by such Grantor.

 

(e)            Such Grantor has taken commercially reasonable steps to protect the confidentiality of its Trade Secrets in accordance with industry standards.

 

(f)             Except as would not have a Material Adverse Effect, such Grantor controls the nature and quality in accordance with industry standards of all products sold under or in connection with all Trademarks of such Grantor, in each case consistent with industry standards, and has taken commercially reasonable steps to insure that all licensees of the Trademarks owned by such Grantor comply with such Grantor’s standards of quality.

 

 

(g)             Except as set forth in Schedule 6 (as such schedule may be amended or supplemented by the Issuer from time to time), to such Grantor’s knowledge and except as would not have a Material Adverse Effect, no Person is infringing, misappropriating, diluting or otherwise violating any rights in any material Intellectual Property owned by such Grantor.

 

3.12.          Vehicles. On the date hereof, the aggregate book value of all Vehicles owned by all Grantors is less than $2,000,000.

 

SECTION 4.  COVENANTS

 

Each Grantor covenants and agrees with the Notes Collateral Agent that, from and after the date of this Agreement until all of the Collateral has been released or discharged in accordance with the applicable provisions of the Indenture:

 

4.1.            Reserved.

 

4.2.            Delivery and Control Requirements.

 

(a)            With respect to any Certificated Securities included in the Collateral, each Grantor shall, subject to the Pari Passu Intercreditor Agreement, promptly deliver to the Notes Collateral Agent the certificates evidencing such Certificated Securities duly indorsed by an effective indorsement (within the meaning of Section 8-107 of the UCC), or accompanied by share transfer powers or other instruments of transfer duly endorsed by such an effective endorsement, in each case, to the Notes Collateral Agent or in blank.

 

(b)             With respect to any Instruments (other than checks, drafts or other Instruments received in the ordinary course of business) or Chattel Paper included in the Collateral, in each case in excess of $1,000,000 individually or $5,000,000 in the aggregate (or such greater amount or amounts set forth in any applicable Credit Agreement), each Grantor shall, subject to the Pari Passu Intercreditor Agreement, promptly deliver to the Notes Collateral Agent all such Instruments or Chattel Paper to the Notes Collateral Agent duly indorsed in blank.

 

(c)             With respect to any Uncertificated Security included in the Collateral (other than any Uncertificated Securities credited to a Securities Account), each Grantor shall, subject to the Pari Passu Intercreditor Agreement, promptly cause the Capital Stock Issuer of such Uncertificated Security to execute an agreement in form and substance reasonably satisfactory to the Notes Collateral Agent pursuant to which such Capital Stock Issuer agrees, upon an Event of Default which is continuing, to comply with the Notes Collateral Agent’s instructions with respect to such Uncertificated Security without further consent by such Grantor.

 

(d)             With respect to any material Letter of Credit Rights included in the Collateral (other than any Letter of Credit Rights constituting a Supporting Obligation for a Receivable in which the Notes Collateral Agent has a valid and perfected security interest), each Grantor shall, subject to the Pari Passu Intercreditor Agreement, use commercially reasonable efforts to ensure that Notes Collateral Agent has control thereof by obtaining the written consent of each issuer of each related letter of credit to the assignment of the proceeds of such letter of credit to the Notes Collateral Agent with the Notes Collateral Agent agreeing that the proceeds of any drawing under any such letter of credit shall be paid to the applicable Grantor unless an Event of Default has occurred and is continuing.

 

 

(e)            With respect to any Electronic Chattel Paper or “transferable record” (as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction) included in the Collateral, in excess of $1,000,000 individually or $5,000,000 in the aggregate (or such greater amount or amounts set forth in any applicable Credit Agreement), such Grantor shall promptly notify the agent under the Credit Agreement or, if no Pari Passu Intercreditor Agreement is then in effect, the Notes Collateral Agent thereof, in writing, and, subject to the Pari Passu Intercreditor Agreement, shall take such action as is necessary to vest in the Notes Collateral Agent control under New York UCC Section 9-105 of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as applicable, Section 16 of the Uniform Electronic Transactions Act, as in effect in such jurisdiction, of such transferable record. Subject to the Pari Passu Intercreditor Agreement, the Notes Collateral Agent agrees with such Grantor that the Notes Collateral Agent will arrange, pursuant to procedures reasonably satisfactory to the Notes Collateral Agent and so long as such procedures will not result in the Notes Collateral Agent’s loss of control, for such Grantor to make alterations to the electronic chattel paper or transferable record permitted under UCC Section 9-105 or, as applicable, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control.

 

4.3.            Maintenance of Insurance.

 

(a)            Such Grantor will maintain, with financially sound and reputable companies, insurance policies (i) insuring the Inventory, Equipment and Vehicles against loss by fire, explosion, theft and such other casualties and (ii) insuring such Grantor against liability for personal injury and property damage relating to such Inventory, Equipment and Vehicles, and naming the Notes Collateral Agent for the ratable benefit of the Secured Parties, as an additional insured party or loss payee, such policies to be in such form and amounts and having such coverage as are customary in the same general area for companies engaged in the same or a similar business as such Grantor, it being understood that the insurance in effect as of the date hereof satisfies the foregoing requirement as of the date hereof.

 

(b)            Such Subsidiary Guarantor shall not permit any cancellation, material reduction in amount or material change in coverage of any of its insurance policies to be effective until at least 30 days after receipt by the Notes Collateral Agent of written notice thereof. All such insurance shall (i) name the Notes Collateral Agent as an additional insured party or loss payee, (ii) include a breach of warranty clause and (iii) be in such form and amounts and having such coverage as are customary in the same general area for companies engaged in the same or a similar business as such Grantor.

 

(c)            [Reserved].

 

(d)            So long as no Event of Default shall have occurred and be continuing, all casualty payments shall be paid to the relevant Grantor. If an Event of Default has occurred and is continuing, all casualty payments shall, subject to the Pari Passu Intercreditor Agreement, be paid to the Notes Collateral Agent for application in accordance with Section 5.5 hereof.

 

 

4.4.           Payment of Secured Obligations. Such Grantor will pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all material taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including, without limitation, claims for labor, materials and supplies) against or with respect to the Collateral, except that no such charge need be paid if the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Grantor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any material interest therein.

 

4.5.           Maintenance of Perfected Security Interest; Further Documentation.

 

(a)            Such Grantor shall maintain the security interest created by this Agreement as a valid perfected security interest (except Money which is not in the possession of the Notes Collateral Agent or as expressly provided herein) having at least the priority described in Section 3.3 hereof and shall defend such security interest against the claims and demands of all Persons whomsoever.

 

(b)            Such Grantor will furnish to the Notes Collateral Agent from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Notes Collateral Agent (acting at the written direction of the Majority Holders) may reasonably request, all in reasonable detail.

 

(c)            At any time and from time to time, upon the written request of the Notes Collateral Agent (acting at the written direction of the Majority Holders), and at the sole expense of such Grantor, subject to the Pari Passu Intercreditor Agreement, such Grantor will promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Notes Collateral Agent (acting at the written direction of the Majority Holders) may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, (i) the filing of any financing or continuation statements, or amendments thereto, under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby, (ii) in the case of Investment Property and any other Collateral of the types described in Section 4.2 hereof to the extent required herein, taking any actions necessary to enable the Notes Collateral Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto, and (iii) in the case of Intellectual Property, execute and deliver trademark security agreements, patent security agreements and copyright security agreements substantially in the forms of Exhibits C, D and E, respectively, and take all actions necessary to ensure the recordation of appropriate evidence of the Liens and security interest granted hereunder in any Intellectual Property with the United States Patent and Trademark Office or the United States Copyright Office.

 

 

4.6.            Changes in Locations, Name, Jurisdiction of Incorporation, etc. Such Grantor will not, except upon 10 days’ prior written notice to the agent under the Credit Agreement or, if no Pari Passu Intercreditor Agreement is then in effect, the Notes Collateral Agent and delivery to the Notes Collateral Agent of (a) all additional financing statements (to be filed by such Grantor) and other documents necessary to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, a written supplement to Schedule 4 setting forth any change to its legal name or jurisdiction of organization and/or Schedule 5 showing any additional locations at which a material amount of Inventory or Equipment (other than mobile goods) shall be kept:

 

(i)              permit any material amount of Inventory or Equipment (other than mobile goods) to be kept at a location other than those listed on Schedule 5;

 

(ii)             change its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business from that referred to in Section 3.4 hereof; or

 

(iii)            change its legal name, identity or structure to such an extent that any financing statement filed by the Issuer and naming the Notes Collateral Agent, as secured party, in connection with this Agreement would become misleading.

 

4.7.           Notices. Such Grantor will advise the Notes Collateral Agent and the Holders promptly, in reasonable detail, of:

 

(a)             any Lien (other than security interests created hereby or Liens permitted under the Indenture) on any of the Collateral which would adversely affect the ability of the Notes Collateral Agent to exercise any of its remedies hereunder; and

 

(b)            the occurrence of any other event which could reasonably be expected to have a material adverse effect on the aggregate value of the Collateral or on the security interests created hereby.

 

4.8.           Pledged Securities.

 

(a)            If such Grantor shall become entitled to receive or shall receive any stock certificate (including, without limitation, any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of the Capital Stock of any Capital Stock Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Notes Collateral Agent and the Secured Parties, hold the same in trust for the Notes Collateral Agent and the Secured Parties and, subject to the Pari Passu Intercreditor Agreement, deliver the same forthwith to the Notes Collateral Agent in the exact form received, duly indorsed by such Grantor to the Notes Collateral Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor, to be held by the Notes Collateral Agent, subject to the terms hereof, as additional collateral security for the Secured Obligations; provided that in no event shall more than 65% of the voting Capital Stock of any first tier Foreign Subsidiary or Foreign Subsidiary Holding Company be required to be pledged hereunder (it being understood and agreed that 100% of the total non-voting Capital Stock of any such Foreign Subsidiary and Foreign Subsidiary Holding Company shall be required to be pledged). If an Event of Default has occurred and is continuing, subject to the Pari Passu Intercreditor Agreement, any sums paid upon or in respect of the Pledged Securities upon the liquidation or dissolution of any Capital Stock Issuer shall be paid over to the Notes Collateral Agent to be held by it hereunder as additional collateral security for the Secured Obligations, and in case any distribution of capital shall be made on or in respect of the Pledged Securities or any property shall be distributed upon or with respect to the Pledged Securities pursuant to the recapitalization or reclassification of the capital of any Capital Stock Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless otherwise subject to a perfected security interest in favor of the Notes Collateral Agent for the benefit of the Secured Parties, be delivered to the Notes Collateral Agent to be held by it hereunder as additional collateral security for the Secured Obligations. Any sums of money or property so paid or distributed in respect of the Pledged Securities shall be received by such Grantor, such Grantor shall, until such money or property is paid or delivered to the Notes Collateral Agent (subject to the Pari Passu Intercreditor Agreement), hold such money or property in trust for the Secured Parties, segregated from other funds of such Grantor, as additional collateral security for the Secured Obligations; provided that the Grantors may pay cash dividends as permitted by the Indenture. Notwithstanding the foregoing, the Grantors shall not be required to pay over to the Notes Collateral Agent or deliver to the Notes Collateral Agent as Collateral any proceeds of any liquidation or dissolution of any Capital Stock Issuer, or any distribution of capital or property in respect of any Investment Property, to the extent that (i) such liquidation, dissolution or distribution would be permitted by the Indenture and (ii) the proceeds thereof are applied toward the prepayment of the Notes or an offer to repurchase of Notes to the extent required by the Indenture.

 

 

(b)            [Reserved].

 

(c)            In the case of each Grantor which is a Capital Stock Issuer, such Capital Stock Issuer agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the agent under the Credit Agreement or, if no Pari Passu Intercreditor Agreement is then in effect, the Notes Collateral Agent promptly in writing of the occurrence of any of the events described in Section 4.8(a) hereof with respect to the Pledged Securities issued by it and (iii) the terms of Sections 5.3(c) and 5.7 hereof shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 5.3(c) or 5.7 with respect to the Pledged Securities issued by it. In addition, each Grantor which is either a Capital Stock Issuer or an owner of any Pledged Security hereby consents to the grant by each other Grantor of the security interest hereunder in favor of the Notes Collateral Agent and, subject to the Pari Passu Intercreditor Agreement, to the transfer of any Pledged Security to the Notes Collateral Agent or its nominee following an Event of Default which is continuing and to the substitution of the Notes Collateral Agent or its nominee as a partner, member or shareholder of the Capital Stock Issuer of the related Pledged Security.

 

(d)            Each Capital Stock Issuer that is a partnership or a limited liability company (i) confirms that none of the terms of any Capital Stock issued by it provides that such equity interest is a “security” within the meaning of Sections 8-102 and 8-103 of the UCC (a “Security”), (ii) agrees that it will take no action to cause or permit any such Capital Stock to become a Security, (iii) agrees that it will not issue any certificate representing any such Capital Stock and (iv) agrees that if, notwithstanding the foregoing, any such Capital Stock shall be or become a Security, such Capital Stock Issuer will (and the Grantor that holds such Capital Stock hereby instructs such Capital Stock Issuer to), after an Event of Default which is continuing, subject to the Pari Passu Intercreditor Agreement, comply with instructions originated by the Notes Collateral Agent without further consent by such Grantor.

 

 

4.9.        Receivables.

 

(a)         Such Grantor shall keep and maintain at its own cost and expense satisfactory records of the Receivables, including, but not limited to, the originals of documentation with respect to all Receivables and records of payments received and credits granted on the Receivables and merchandise returned.

 

(b)            Other than in the ordinary course of business or as permitted by the Notes Documents, subject to the Pari Passu Intercreditor Agreement, such Grantor will not (i) grant any extension of the time of payment of any material Receivable, (ii) compromise or settle any material Receivable for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any material Receivable, (iv) allow any credit or discount whatsoever on any material Receivable or (v) amend, supplement or modify any material Receivable in any manner that could adversely affect the value thereof.

 

(c)            Such Grantor will deliver to the Notes Collateral Agent a copy of each material demand, notice or document received by it that questions or calls into doubt the validity or enforceability of more than the greater of 5% of the aggregate amount of the then outstanding Receivables and $5,000,000 (or such greater percentage and/or amount set forth in any applicable Credit Agreement).

 

4.10.         Commercial Tort Claims. In the event that it hereafter acquires or has any Commercial Tort Claim in excess of $1,000,000 individually or $5,000,000 in the aggregate (or such greater amount or amounts set forth in any applicable Credit Agreement), such Grantor shall deliver to the Notes Collateral Agent, a written supplement to Schedule 8 identifying such new Commercial Tort Claims.

 

4.11.         Intellectual Property.

 

(a)            Subject to such Grantor’s reasonable business judgment and except as would not have a Material Adverse Effect, such Grantor will (i) continue to use each material Trademark in order to maintain such Trademark in full force free from any claim of abandonment for non-use, except in connection with any disposition or transfer thereof not prohibited by the Indenture or the non-use of a given Trademark for specific goods and services in the ordinary course of business, (ii) maintain as in the past the quality of products offered under such Trademark, and (iii) use commercially reasonable efforts, consistent with industry standards, to display appropriate notice of registration in connection with its use of registered Trademarks, and appropriate trademark notices in connection with its material unregistered Trademarks.

 

(b)            Such Grantor will not knowingly do any act or knowingly omit to do any act (i) whereby any (A) material Trademark may become invalidated or impaired in any way, (B) material Patent may become forfeited, abandoned or dedicated to the public, or (C) material Copyrights may become invalidated or otherwise impaired or fall into the public domain or (ii) which would adversely affect the validity, grant or enforceability of the security interest granted in material Intellectual Property of such Grantor, in the case of each of clauses (i) and (ii), except as would not have a Material Adverse Effect and except as otherwise determined in such Grantor’s reasonable business judgment.

 

 

(c)            Such Grantor will not knowingly do any act that infringes the intellectual property rights of any other Person, except as would not have a Material Adverse Effect.

 

(d)            Such Grantor will notify the agent under the Credit Agreement or, if no Pari Passu Intercreditor Agreement is then in effect, the Notes Collateral Agent immediately, in writing, if it knows, or has reason to know, that any application or registration relating to any material Intellectual Property has become, or is reasonably likely to become, forfeited, abandoned or dedicated to the public, placed in the public domain, or such Grantor has been notified that any third party is exercising any reversion or termination rights, or such Grantor knows, or has reason to know, of any material adverse determination or development (including, without limitation, the institution of, or any such material determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court or tribunal in any country) regarding such Grantor’s ownership of, or the validity or enforceability of, any material Intellectual Property or such Grantor’s right to register the same or to own and maintain the same, in each case, except as would not have a Material Adverse Effect.

 

(e)            Whenever such Grantor, either by itself or through any agent, employee, licensee or designee, shall (i) file an application for the registration of any Intellectual Property with the United States Patent and Trademark Office or the United States Copyright Office, (ii) otherwise acquire any Intellectual Property that is registered or applied for in the United States Patent and Trademark Office, or the United States Copyright Office, or (iii) file a “Statement of Use” or an “Amendment to Allege Use” with respect to any “intent-to-use” application for registration of a Trademark in the United States Patent and Trademark Office, such Grantor shall report such filing to the Notes Collateral Agent within 30 Business Days after the last day of the fiscal quarter in which such filing occurs, provided that failure to give notice shall not be deemed to be a breach of this Agreement unless failure to provide such notice results in a Material Adverse Effect.

 

(f)            Upon written request of the Notes Collateral Agent (acting at the written direction of the Majority Holders), or to the extent a similar request is made by the agent under the Credit Agreement, with respect to any Patents, Trademarks or Copyrights registered, issued or applied for in the United States, such Grantor shall execute and deliver, and have recorded in the United States Patent and Trademark Office or United States Copyright Office, as applicable, any trademark security agreement, patent security agreement or copyright security agreement substantially in the forms of Exhibits C, D and E, respectively.

 

(g)           Consistent with such Grantor’s reasonable business judgment, such Grantor will take such commercially reasonable steps as so determined in such Grantor’s reasonable business judgment, including, without limitation, in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, as applicable, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of the material Intellectual Property, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability.

 

 

(h)           In the event that any Grantor becomes aware that any material Intellectual Property is infringed, misappropriated or diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property (if any) and (ii) promptly notify the agent under the Credit Agreement or, if no Pari Passu Intercreditor Agreement is then in effect, the Notes Collateral Agent, in writing, after it learns thereof and take such action against such third party as such Grantor reasonably deems appropriate under the circumstances (if any), including, without limitation, suing for infringement, misappropriation or dilution, seeking injunctive relief where appropriate and recovering any and all damages for such infringement, misappropriation or dilution, if so determined in such Grantor’s reasonable business judgment.

 

(i)            Such Grantor shall take commercially reasonable steps to protect the secrecy of all material Trade Secrets.

 

(j)            To the extent a breach of this Section 4.11 would result in an Event of Default, it shall not be considered an Event of Default if such breach is cured within 30 days after written notice from the Notes Collateral Agent (acting at the written direction of the Majority Holders) and results in no Material Adverse Effect to the affected Intellectual Property.

 

4.12.         Deposit Accounts, Securities Accounts, Etc.

 

(a)            With respect to any Deposit Account that is included in the Collateral, upon the request of the Notes Collateral Agent (acting at the written direction of the Majority Holders) at any time when an Event of Default shall have occurred and be continuing, subject to the Pari Passu Intercreditor Agreement, each Grantor shall cause the Bank maintaining such account to enter into an agreement in form and substance reasonably satisfactory to the Notes Collateral Agent pursuant to which such Bank shall agree to comply with the Notes Collateral Agent’s instructions with respect to disposition of funds in the Deposit Account without further consent by such Grantor or any other Person.

 

(b)            With respect to any Securities Accounts or Securities Entitlements, upon the request of the Notes Collateral Agent (acting at the written direction of the Majority Holders) at any time when an Event of Default shall have occurred and be continuing, subject to the Pari Passu Intercreditor Agreement, each Grantor shall cause the Securities Intermediary maintaining such Securities Account or Security Entitlement to enter into an agreement in form and substance reasonably satisfactory to the Notes Collateral Agent pursuant to which the Securities Intermediary shall agree to comply with Notes Collateral Agent’s Entitlement Orders without further consent by such Grantor.

 

(c)            With respect to any Commodity Accounts or Commodity Contracts, upon the request of the Notes Collateral Agent (acting at the written direction of the Majority Holders) at any time when an Event of Default shall have occurred and be continuing, subject to the Pari Passu Intercreditor Agreement, each Grantor shall cause “control” (within the meaning of Section 9-106 of the UCC) in favor of the Notes Collateral Agent in a manner reasonably acceptable to the Notes Collateral Agent.

 

 

SECTION 5.  REMEDIAL PROVISIONS

 

5.1.         Certain Matters Relating to Receivables.

 

(a)         Subject to the Pari Passu Intercreditor Agreement, the Notes Collateral Agent (acting at the written direction of the Majority Holders) shall have the right to make test verifications of the Receivables in any manner and through any medium that the Majority Holders reasonably consider advisable, and each Grantor, at such Grantor’s sole cost and expense, shall furnish all such assistance and information as the Notes Collateral Agent may require in connection with such test verifications. At any time and from time to time, subject to the Pari Passu Intercreditor Agreement, upon the Notes Collateral Agent’s request (acting at the written direction of the Majority Holders) and at the expense of the relevant Grantor, such Grantor shall cause independent public accountants or others satisfactory to the Majority Holders to furnish to the Notes Collateral Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the Receivables, but not more frequently than annually if no Event of Default shall have occurred and be continuing; provided, however, that if no Event of Default shall have occurred and be continuing, the Notes Collateral Agent may not contact any obligor under any Receivable in its own name.

 

(b)            The Notes Collateral Agent hereby authorizes each Grantor to collect such Grantor’s Receivables; provided that, subject to the Pari Passu Intercreditor Agreement, the Notes Collateral Agent (acting at the written direction of the Majority Holders) may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default.

 

(c)            If required by the Notes Collateral Agent (acting at the written direction of the Majority Holders) at any time after the occurrence and during the continuance of an Event of Default, subject to the Pari Passu Intercreditor Agreement, any payments of Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Notes Collateral Agent if required, in a Collateral Account maintained under the sole dominion and control of the Notes Collateral Agent, subject to withdrawal by the Notes Collateral Agent for the account of the Secured Parties only as provided in Section 5.5 hereof, and (ii) until so turned over, shall be held by such Grantor in trust for the Notes Collateral Agent and the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

 

(d)            At the Notes Collateral Agent’s request (acting at the written direction of the Majority Holders), after the occurrence and during the continuance of an Event of Default, each Grantor shall, subject to the Pari Passu Intercreditor Agreement, deliver to the Notes Collateral Agent all original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables, including, without limitation, all original orders, invoices and shipping receipts.

 

5.2.          Communications with Obligors; Grantors Remain Liable.

 

(a)         Subject to the Pari Passu Intercreditor Agreement, the Notes Collateral Agent (acting at the written direction of the Majority Holders) in its own name or in the name of others may at any time after the occurrence and during the continuance of an Event of Default communicate with obligors under the Receivables to verify with them to the Majority Holders’ satisfaction the existence, amount and terms of any Receivables.

 

 

(b)            Upon the request of the Notes Collateral Agent (acting at the written direction of the Majority Holders) at any time after the occurrence and during the continuance of an Event of Default, subject to the Pari Passu Intercreditor Agreement, each Grantor shall (i) notify obligors on the Receivables that the Receivables have been assigned to the Notes Collateral Agent for the ratable benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Notes Collateral Agent and (ii) notify each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Notes Collateral Agent. In addition, at any time after the occurrence and during the continuance of an Event of Default, subject to the Pari Passu Intercreditor Agreement, the Notes Collateral Agent (acting at the written direction of the Majority Holders) shall have the right to enforce, at the sole cost and expense of the Grantors, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as the Grantors might have done.

 

(c)            Notwithstanding anything herein to the contrary, each Grantor shall remain liable under each of the Receivables to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither the Notes Collateral Agent nor any Secured Party shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) or contract included in the Collateral by reason of or arising out of this Agreement or the receipt by the Notes Collateral Agent or any Secured Party of any payment relating thereto, nor shall the Notes Collateral Agent or any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto) or contract included in the Collateral, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

 

5.3.           Pledged Stock.

 

(a)            Unless an Event of Default shall have occurred and be continuing and the Notes Collateral Agent (acting at the written direction of the Majority Holders) shall have given notice to the relevant Grantor of the Notes Collateral Agent’s intent to exercise its corresponding rights pursuant to Section 5.3(b), each Grantor shall be permitted to receive all cash dividends and other distributions paid in respect of the Pledged Stock and all payments made in respect of the Pledged Notes, in each case paid in the normal course of business of the relevant Capital Stock Issuer and consistent with past practice, to the extent permitted in the Indenture, and to exercise all voting and corporate rights with respect to the Pledged Securities; provided, however, that no vote shall be cast or corporate right exercised or other action taken which would impair the Collateral in any material respect or which would result in any violation of any provision of the Indenture, this Agreement or any other Notes Document.

 

 

(b)            If an Event of Default shall occur and be continuing and the Notes Collateral Agent (acting at the written direction of the Majority Holders) shall give notice of its intent to exercise such rights to the relevant Grantor or Grantors, subject to the Pari Passu Intercreditor Agreement, (i) the Notes Collateral Agent shall have the right to receive any and all cash dividends, payments or other Proceeds paid in respect of the Pledged Securities and make application thereof to the Secured Obligations in the order set forth in Section 5.5 hereof, and (ii) any or all of the Pledged Securities shall be registered in the name of the Notes Collateral Agent or its nominee, and the Notes Collateral Agent or its nominee may thereafter exercise (x) all voting, corporate and other rights pertaining to such Pledged Securities at any meeting of shareholders of the relevant Capital Stock Issuer or Capital Stock Issuers or otherwise and (y) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to such Pledged Securities as if it were the absolute owner thereof (including, without limitation, the right to exchange at its discretion any and all of the Pledged Securities upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any Capital Stock Issuer, or upon the exercise by any Grantor or the Notes Collateral Agent of any right, privilege or option pertaining to such Pledged Securities, and in connection therewith, the right to deposit and deliver any and all of the Pledged Securities with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Notes Collateral Agent (acting at the written direction of the Majority Holders) may determine), all without liability except to account for property actually received by it, but the Notes Collateral Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

 

(c)            Subject to the Pari Passu Intercreditor Agreement, each Grantor hereby authorizes and instructs each Capital Stock Issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it from the Notes Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each Capital Stock Issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Securities directly to the Notes Collateral Agent.

 

5.4.           Proceeds to be Turned Over To Notes Collateral Agent. Subject to the Pari Passu Intercreditor Agreement, in addition to the rights of the Notes Collateral Agent and the Secured Parties specified in Section 5.1 hereof with respect to payments of Receivables, if an Event of Default shall occur and be continuing, all Proceeds received by any Grantor consisting of cash, cash equivalents, checks and other near-cash items shall be held by such Grantor in trust for the Notes Collateral Agent and the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Notes Collateral Agent in the exact form received by such Grantor (duly indorsed by such Grantor to the Notes Collateral Agent or its nominee, if required). All Proceeds received by the Notes Collateral Agent hereunder shall be held by the Notes Collateral Agent in a Collateral Account maintained under its sole dominion and control. All Proceeds while held by the Notes Collateral Agent in a Collateral Account (or by such Grantor in trust for the Notes Collateral Agent and the Secured Parties) shall continue to be held as collateral security for all the Secured Obligations and shall not constitute payment thereof until applied as provided in Section 5.5 hereof.

 

 

5.5.            Application of Proceeds. Subject to the Pari Passu Intercreditor Agreement, all proceeds received by the Notes Collateral Agent in respect of any sale of, any collection from, or other realization upon all or any part of the Collateral shall be applied in full or in part by the Notes Collateral Agent against, the Secured Obligations in the following order of priority:

 

First, pro rata (a) to the payment of all costs and expenses of such sale, collection or other realization, including reasonable compensation to the Notes Collateral Agent and its agents and counsel, and all other fees, expenses, liabilities and advances made, incurred by or asserted against the Notes Collateral Agent in connection therewith, and all amounts for which the Notes Collateral Agent is then entitled to indemnification hereunder (in its capacity as the Notes Collateral Agent) and all advances made by the Notes Collateral Agent hereunder for the account of the applicable Grantor, and to the payment of all costs and expenses paid or incurred by the Notes Collateral Agent in connection with the exercise of any right or remedy hereunder or under the Indenture, all in accordance with the terms hereof or thereof; and (b) to the payment of all outstanding fees, expenses, liabilities and advances (including, but not limited to, attorneys’ fees and expenses) made, incurred by or asserted against the Trustee in connection with the Indenture and the other Notes Documents, and all amounts for which the Trustee is then entitled to indemnification hereunder (in its capacity as the Trustee);

 

Second, to the extent of any excess of such proceeds, to the payment of all other Secured Obligations for the ratable benefit of the Secured Parties; and

 

Third, any balance of such Proceeds remaining after the Secured Obligations shall have been paid in full (other than contingent indemnification obligations in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or written) has been made (and, no notice for indemnification has been issued by the indemnitee) at such time) shall be paid to the Issuer.

 

 

5.6.            Code and Other Remedies. Subject to the Pari Passu Intercreditor Agreement, if an Event of Default shall have occurred and be continuing, the Notes Collateral Agent (acting at the written direction of the Majority Holders), on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Collateral) or its rights under any other applicable law or in equity. Without limiting the generality of the foregoing, subject to the Pari Passu Intercreditor Agreement, the Notes Collateral Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Notes Collateral Agent or any Secured Party or elsewhere upon such terms and conditions as the Majority Holders may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Notes Collateral Agent or any Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Notes Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Notes Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Notes Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Notes Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Notes Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Notes Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Notes Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree; provided that any such sale shall be conducted in a commercially reasonable manner (it being understood and agreed that, the terms of a commercially reasonable sale expressly agreed in this Section 5.6 shall apply to any such sale). Subject to the Pari Passu Intercreditor Agreement, each Grantor further agrees, at the Notes Collateral Agent’s request, to assemble the Collateral and make it available to the Notes Collateral Agent at places which the Notes Collateral Agent (acting at the written direction of the Majority Holders) shall reasonably select, whether at such Grantor’s premises or elsewhere. Subject to the Pari Passu Intercreditor Agreement, the Notes Collateral Agent shall apply the proceeds of any action taken by it pursuant to this Section 5.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Notes Collateral Agent and the Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in accordance with Section 5.5 hereof, and only after such application and after the payment by the Notes Collateral Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the UCC, need the Notes Collateral Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the Notes Collateral Agent or any Secured Party arising out of the exercise by them of any rights hereunder, other than any such claims, damages and demands found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the bad faith, gross negligence or willful misconduct of the Notes Collateral Agent or such Secured Party, as applicable. The Notes Collateral Agent shall have the right to enter onto the property where any Collateral is located and take possession thereto with or without judicial process.

 

 

5.7.            Pledged Stock.

 

(a)             [Reserved]

 

(b)             Each Grantor recognizes that the Notes Collateral Agent may be unable to effect a public sale of any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Notes Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Stock for the period of time necessary to permit the Capital Stock Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Capital Stock Issuer would agree to do so.

 

(c)              Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged Stock pursuant to this Section 5.7 valid and binding and in compliance in all material respects with any and all other applicable laws.

 

5.8.            Waiver; Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Secured Obligations and the fees and disbursements of any attorneys employed by the Notes Collateral Agent or any Secured Party to collect such deficiency.

 

5.9.            Grant of Intellectual Property License. Solely for the purpose of enabling the Notes Collateral Agent, during the continuance of an Event of Default, to exercise rights and remedies under Section 5 hereof at such time as the Notes Collateral Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Grantor hereby grants to the Notes Collateral Agent, to the extent it has the right to do so, an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation of such Trademarks, to use, and exploit any of the Intellectual Property now owned or hereafter acquired, developed or created by such Grantor forming part of the Collateral, wherever the same may be located; provided, that, the foregoing license (a) shall be subject to any license of intellectual property previously granted by any Grantor, and (b) shall only be exercisable upon the occurrence, and during the continuation, of an Event of Default.

 

 

SECTION 6.  THE NOTES COLLATERAL AGENT

 

6.1.            Notes Collateral Agent’s Appointment as Attorney-in-Fact, etc.

 

(a)             Each Grantor hereby irrevocably constitutes and appoints the Notes Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, such appointment being coupled with an interest, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Notes Collateral Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:

 

(i)              in the name of such Grantor or its own name, or otherwise, take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or Contract or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Notes Collateral Agent (acting at the written direction of the Majority Holders) for the purpose of collecting any and all such moneys due under any Receivable or Contract or with respect to any other Collateral whenever payable;

 

(ii)             in the case of any Intellectual Property, execute and deliver, and have recorded the trademark security agreements, patent security agreements and copyright security agreements substantially in the forms of Exhibits C, D, and E, respectively;

 

(iii)            pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof;

 

(iv)            execute, in connection with any sale provided for in Section 5.6 or 5.7 hereof, any indorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and

 

(v)            (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Notes Collateral Agent or as the Notes Collateral Agent (acting at the written direction of the Majority Holders) shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Notes Collateral Agent (acting at the written direction of the Majority Holders) may deem appropriate; and (7) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Notes Collateral Agent was the absolute owner thereof for all purposes, and do, at the Notes Collateral Agent’s option (acting at the written direction of the Majority Holders) and such Grantor’s expense, at any time, or from time to time, all acts and things which the Majority Holders deem necessary to protect, preserve or realize upon the Collateral and the Notes Collateral Agent’s and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

 

 

Anything in this Section 6.1(a) to the contrary notwithstanding, the Notes Collateral Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 6.1(a) unless an Event of Default shall have occurred and be continuing, and subject to the Pari Passu Intercreditor Agreement.

 

(b)             If any Grantor fails to perform or comply with any of its agreements contained herein, the Notes Collateral Agent, at its option (acting at the written direction of the Majority Holders) following notice to such Grantor of such failure, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement.

 

(c)             The expenses of the Notes Collateral Agent incurred in connection with actions undertaken as provided in this Section 6.1 shall be payable by such Grantor to the Notes Collateral Agent on demand.

 

(d)             Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.

 

6.2.            Duty of Notes Collateral Agent. The Notes Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in their possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Notes Collateral Agent deals with similar property for its own account. Neither the Notes Collateral Agent, nor any other Secured Party nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Notes Collateral Agent and the Secured Parties hereunder are solely to protect the Notes Collateral Agent’s and the Secured Parties’ interests in the Collateral and shall not impose any duty upon the Notes Collateral Agent or any Secured Party to exercise any such powers. The Notes Collateral Agent and the Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither the Notes Collateral Agent, any Secured Party nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure is found by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from such Person’s own bad faith, gross negligence or willful misconduct.

 

 

6.3.            Financing Statements. Pursuant to the UCC or any other applicable law, each Grantor authorizes the Notes Collateral Agent (but without any obligation to do so) to file or record financing or continuation statements, and amendments thereto, and other filing or recording documents or instruments with respect to the Collateral without the signature of such Grantor in such form and in such offices as the Notes Collateral Agent reasonably determines appropriate to perfect or maintain the perfection of the security interests of the Notes Collateral Agent under this Agreement. Each Grantor authorizes the Notes Collateral Agent to use the collateral description “all personal property” or “all assets” in any such financing statements.

 

6.4.            Authority of Notes Collateral Agent. Each Grantor acknowledges that the rights and responsibilities of the Notes Collateral Agent under this Agreement with respect to any action taken by the Notes Collateral Agent or the exercise or non-exercise by the Notes Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Notes Collateral Agent and the Holders, be governed by the Indenture and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Notes Collateral Agent and the Grantors, the Notes Collateral Agent shall be conclusively presumed to be acting as agent for the Holders and the other Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor or other Person (except a Holder) shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

 

6.5.            Rights and Protections of the Notes Collateral Agent. Each of the Grantors hereby acknowledges and agrees that the Notes Collateral Agent shall be entitled to all of its rights, privileges, protections, indemnities and immunities set forth in the Indenture in connection with its execution of this Agreement and performance of its duties hereunder.

 

SECTION 7.  MISCELLANEOUS

 

7.1.            Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with the Indenture; provided that the Issuer may amend or supplement the schedules hereto as required or otherwise contemplated herein.

 

7.2.            Notices. All notices, requests and demands to or upon the Notes Collateral Agent or any Grantor hereunder shall be effected in the manner provided for in Section 13.02 of the Indenture; provided that any such notice, request or demand to or upon any Subsidiary Guarantor shall be addressed to such Subsidiary Guarantor at its notice address set forth on Schedule 1.

 

7.3.            No Waiver by Course of Conduct; Cumulative Remedies. Neither the Notes Collateral Agent nor any Secured Party shall by any act (except by a written instrument pursuant to Section 7.1 hereof), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Notes Collateral Agent or any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Notes Collateral Agent or any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Notes Collateral Agent or such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

 

 

7.4.            Enforcement Expenses; Indemnification.

 

(a)             Each Grantor, jointly and severally, will pay to the Notes Collateral Agent from time to time such compensation for its acceptance of this Agreement and services hereunder as the parties shall agree in writing from time to time. Each Grantor will reimburse the Notes Collateral Agent promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services; provided, however, that the Issuer need not reimburse any expense or indemnity against any loss or liability determined to have been caused by the Note Collateral Agent’s own gross negligence or willful misconduct. Such expenses will include the reasonable compensation, disbursements and expenses of the Note Collateral Agent’s agents and counsel.

 

(b)            [reserved].

 

(c)             Each Grantor, jointly and severally, will indemnify the Notes Collateral Agent against any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Agreement, including the reasonable costs and expenses of enforcing this Agreement and the other Notes Documents against any Grantor (including this Section 7.4) and defending itself against any claim (whether asserted by any Grantor, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense shall have been caused by its own gross negligence or willful misconduct. The Notes Collateral Agent will notify the Grantors promptly of any claim of which it has received notice for which it may seek indemnity. Failure by the Notes Collateral Agent to so notify the Grantors will not relieve any Grantor of its obligations hereunder. The Grantors will defend the claim and the Notes Collateral Agent will cooperate in the defense. The Notes Collateral Agent may have separate counsel and the Grantors will pay the reasonable fees and expenses of such counsel. No Grantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.

 

(d)            The agreements in this Section shall survive repayment in full of the Secured Obligations and all other amounts payable under the Indenture and the other Notes Documents.

 

7.5.            Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Notes Collateral Agent and the Secured Parties and their successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement (except in accordance with Article 5 or Section 11.04, as applicable, of the Indenture) without the prior written consent of the Notes Collateral Agent (to be given or withheld at the written direction of the Majority Holders) and any attempted such assignment, transfer or delegation without such prior written consent shall be null and void.

 

 

7.6.            Reserved.

 

7.7.            Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

7.8.            Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

7.9.            Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

 

7.10.          Integration. This Agreement and the other Notes Documents, and any separate letter agreements with respect to fees payable to the Notes Collateral Agent, represent the entire agreement of the Grantors, the Notes Collateral Agent and the Secured Parties with respect to the subject matter hereof and thereof, and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to confer upon any Person (other than the parties hereto and their respective successor and assigns permitted hereunder) any rights, remedies, obligations or liabilities under or by reason of this Agreement.

 

7.11.         GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF LAW RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).

 

 

7.12.         Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably and unconditionally:

 

(i)             submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Security Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the Courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;

 

(ii)            consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(iii)           agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Grantor at its address referred to in Section 7.2 or at such other address of which the Notes Collateral Agent shall have been notified pursuant thereto;

 

(iv)           agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and

 

(v)            agrees that it shall not assert, and hereby waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, indirect, punitive or consequential damages.

 

7.13.         Reserved.

 

7.14.         Additional Grantors. Each Subsidiary of the Issuer that is required to become a party to this Agreement pursuant to Sections 4.19 and 11.03 of the Indenture (each an “Additional Grantor”) shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement substantially in the form of Exhibit B. Upon delivery of any such Assumption Agreement to the Notes Collateral Agent, notice of which is hereby waived by each other Grantor, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Notes Collateral Agent (acting at the written direction of the Majority Holders) or the Issuer (to the extent in accordance with the terms of the Indenture) not to cause any Subsidiary of the Issuer to become an Additional Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.

 

7.15.         Releases.

 

(a)           This Agreement and all obligations (other than those expressly stated to survive such termination) of the Notes Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors, as provided in Section 10.02 of the Indenture. At the request and sole expense of any Grantor following any such termination, the Notes Collateral Agent shall deliver to such Grantor any Collateral held by the Notes Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request (in form and substance reasonably satisfactory to the Notes Collateral Agent) to evidence such termination.

 

 

(b)            The Collateral shall be released from the Liens created hereby as provided in Section 10.02 of the Indenture. A Subsidiary Guarantor shall be released from its obligations hereunder to the extent specifically provided for in the Indenture, including Section 11.05 thereof.

 

7.16.        WAIVER OF JURY TRIAL.EACH GRANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE NOTES COLLATERAL AGENT AND EACH SECURED PARTY, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER NOTES DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY). EACH GRANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE NOTES COLLATERAL AGENT AND EACH SECURED PARTY, (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 HAS BEEN INDUCED TO ENTER ITO THIS AGREEMENT AND THE OTHER NOTES DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.16.

 

7.17.         Intercreditor Agreement.

 

Notwithstanding anything to the contrary, (i) the liens and security interests granted to the Notes Collateral Agent pursuant to this Agreement and all rights and obligations of the Notes Collateral Agreement hereunder are expressly subject to the Pari Passu Intercreditor Agreement and (ii) the exercise of any right or remedy by the Notes Collateral Agent (or any Secured Party) hereunder is subject to the limitation and provisions of the Pari Passu Intercreditor Agreement. Without limiting any of the rights and protections (including indemnities) of the Notes Collateral Agent hereunder, in the event of any conflict or inconsistency between the terms of the Pari Passu Intercreditor Agreement and the terms of this Agreement, the terms of the Pari Passu Intercreditor Agreement shall govern. Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary (including any Schedules hereto), no Grantor shall be required hereunder or under any Security Document to take any action with respect to the Collateral that is inconsistent with such Grantor’s obligations under the Pari Passu Intercreditor Agreement. Prior to the (x) Discharge of Credit Agreement and (y) the Non-Controlling Representative Enforcement Date (each as defined in the Pari Passu Intercreditor Agreement), (i) the delivery or granting of “control” (as defined in the UCC) to the Applicable Collateral Agent (which, for the avoidance of doubt, is the Credit Agreement Representative as of the date hereof) shall satisfy any such delivery or granting of “control” requirement hereunder or under any other Security Document with respect to any Collateral to the extent that such delivery or granting of “control” is consistent with the terms of the Pari Passu Intercreditor Agreement (including, without limitation, delivery of all Pledged Securities required to be delivered hereunder), and (ii) the possession of any Collateral by the Applicable Collateral Agent (which, for the avoidance of doubt, is the Credit Agreement Representative as of the date hereof) shall satisfy any such possession requirement hereunder or under any other Security Document with respect to any Collateral to the extent that such possession is consistent with the terms of the Pari Passu Intercreditor Agreement.

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, each Grantor and the Notes Collateral Agent have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first above written.

 

	B&G FOODS, INC.
	B&G FOODS NORTH AMERICA, INC.
	B&G FOODS SNACKS, INC.
	BEAR CREEK COUNTY KITCHENS, LLC
	CLABBER GIRL CORPORATION
	WILLIAM UNDERWOOD COMPANY
	SPARTAN FOODS OF AMERICA, INC.
	VICTORIA FINE FOODS, LLC
	By:	/s/ Scott E. Lerner
	Name:	Scott E. Lerner
	Title:	Executive Vice President, General Counsel, Secretary and Chief Compliance Officer

 

[Signature Page — Collateral Agreement]

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Notes Collateral Agent

 

 

By:	/s/ April Bradley
Name: April Bradley
Title: Vice President

 

[Signature Page — Collateral Agreement]

 

 

Exhibit 99.1

 

 

B&G Foods Closes $550.0 Million Private Offering of Senior Secured Notes

 

PARSIPPANY, N.J., September 26, 2023 — B&G Foods, Inc. (NYSE: BGS) announced today that it has completed its previously announced offering of $550.0 million aggregate principal amount of 8.000% senior secured notes due 2028 in a transaction exempt from registration under the Securities Act of 1933, as amended.

 

The senior secured notes are guaranteed on a senior secured basis by certain domestic subsidiaries of B&G Foods (that guarantee B&G Foods’ existing senior secured credit agreement and existing senior unsecured notes). The senior secured notes are secured by a first-priority security interest in certain collateral, which generally includes most of B&G Foods’ and the guarantors’ right or interest in or to property of any kind, except for real property and certain intangible assets, and which collateral also secures B&G Foods’ existing senior secured credit agreement on a pari passu basis.

 

B&G Foods intends to use the net proceeds of the offering, together with cash on hand, to redeem $555.4 million aggregate principal amount of B&G Foods’ 5.25% senior notes due 2025 and pay related fees and expenses.

 

The senior secured notes and related guarantees were offered only to persons reasonably believed to be qualified institutional buyers in reliance on an exemption from registration pursuant to Rule 144A under the Securities Act, and to certain non-U.S. persons in transactions outside of the United States in reliance on Regulation S under the Securities Act. The senior secured notes and the related guarantees have not been and will not be registered under the Securities Act, any state securities laws or the securities laws of any other jurisdiction. Accordingly, the senior secured notes and the related guarantees may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and any applicable securities laws of any state or other jurisdiction.

 

This press release does not constitute a redemption notice with respect to the 5.25% senior notes due 2025 and shall not constitute an offer to sell or the solicitation of an offer to buy the senior secured notes and the related guarantees, nor shall there be any sale of the senior secured notes and the related guarantees in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

 

About B&G Foods, Inc.

 

Based in Parsippany, New Jersey, B&G Foods and its subsidiaries manufacture, sell and distribute high-quality, branded shelf-stable and frozen foods across the United States, Canada and Puerto Rico. With B&G Foods’ diverse portfolio of more than 50 brands you know and love, including B&G, B&M, Bear Creek, Cream of Wheat, Crisco, Dash, Green Giant, Las Palmas, Le Sueur, Mama Mary’s, Maple Grove Farms, New York Style, Ortega, Polaner, Spice Islands and Victoria, there’s a little something for everyone.

 

 

Forward-Looking Statements

 

Statements in this press release that are not statements of historical or current fact constitute “forward-looking statements.” The forward-looking statements contained in this press release include, without limitation, statements related to B&G Foods’ intended use of proceeds of the senior secured notes offering, including the redemption of a portion of the 5.25% senior notes due 2025. Such forward-looking statements involve known and unknown risks, uncertainties and other unknown factors that could cause the actual results of B&G Foods to be materially different from the historical results or from any future results expressed or implied by such forward-looking statements. In addition to statements that explicitly describe such risks and uncertainties, readers are urged to consider statements labeled with the terms “believes,” “belief,” “expects,” “projects,” “intends,” “anticipates,” “assumes,” “could,” “should,” “estimates,” “potential,” “seek,” “predict,” “may,” “will” or “plans” and similar references to future periods to be uncertain and forward-looking. Factors that may affect actual results include, without limitation: the Company’s substantial leverage; the effects of rising costs for and/or decreases in supply of the Company’s commodities, ingredients, packaging, other raw materials, distribution and labor; crude oil prices and their impact on distribution, packaging and energy costs; the Company’s ability to successfully implement sales price increases and cost saving measures to offset any cost increases; intense competition, changes in consumer preferences, demand for the Company’s products and local economic and market conditions; the Company’s continued ability to promote brand equity successfully, to anticipate and respond to new consumer trends, to develop new products and markets, to broaden brand portfolios in order to compete effectively with lower priced products and in markets that are consolidating at the retail and manufacturing levels and to improve productivity; the ability of the Company and its supply chain partners to continue to operate manufacturing facilities, distribution centers and other work locations without material disruption, and to procure ingredients, packaging and other raw materials when needed despite disruptions in the supply chain or labor shortages; the impact pandemics or disease outbreaks, such as the COVID-19 pandemic, may have on the Company’s business, including among other things, the Company’s supply chain, manufacturing operations or workforce and customer and consumer demand for the Company’s products; the Company’s ability to recruit and retain senior management and a highly skilled and diverse workforce at the Company’s corporate offices, manufacturing facilities and other locations despite a very tight labor market and changing employee expectations as to fair compensation, an inclusive and diverse workplace, flexible working and other matters; the risks associated with the expansion of the Company’s business; the Company’s possible inability to identify new acquisitions or to integrate recent or future acquisitions or the Company’s failure to realize anticipated revenue enhancements, cost savings or other synergies from recent or future acquisitions; the Company’s ability to successfully complete the integration of recent or future acquisitions into the Company’s enterprise resource planning (ERP) system; tax reform and legislation, including the effects of the Infrastructure Investment and Jobs Act, U.S. Tax Cuts and Jobs Act and the U.S. CARES Act, and future tax reform or legislation; the Company’s ability to access the credit markets and the Company’s borrowing costs and credit ratings, which may be influenced by credit markets generally and the credit ratings of the Company’s competitors; unanticipated expenses, including, without limitation, litigation or legal settlement expenses; the effects of currency movements of the Canadian dollar and the Mexican peso as compared to the U.S. dollar; the effects of international trade disputes, tariffs, quotas, and other import or export restrictions on the Company’s international procurement, sales and operations; future impairments of the Company’s goodwill and intangible assets; the Company’s ability to protect information systems against, or effectively respond to, a cybersecurity incident, other disruption or data leak; the Company’s ability to successfully implement the Company’s sustainability initiatives and achieve the Company’s sustainability goals, and changes to environmental laws and regulations; and other factors that affect the food industry generally, including: recalls if products become adulterated or misbranded, liability if product consumption causes injury, ingredient disclosure and labeling laws and regulations and the possibility that consumers could lose confidence in the safety and quality of certain food products; competitors’ pricing practices and promotional spending levels; fluctuations in the level of the Company’s customers’ inventories and credit and other business risks related to the Company’s customers operating in a challenging economic and competitive environment; and the risks associated with third-party suppliers and co-packers, including the risk that any failure by one or more of the Company’s third-party suppliers or co-packers to comply with food safety or other laws and regulations may disrupt the Company’s supply of raw materials or certain finished goods products or injure the Company’s reputation. The forward-looking statements contained herein are also subject generally to other risks and uncertainties that are described from time to time in B&G Foods’ filings with the Securities and Exchange Commission, including under Item 1A, “Risk Factors” in the Company’s most recent Annual Report on Form 10-K and in its subsequent reports on Forms 10-Q and 8-K. Investors are cautioned not to place undue reliance on any such forward-looking statements, which speak only as of the date they are made. B&G Foods undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise.

 

Contacts:

Investor Relations: ICR, Inc. Dara Dierks 866.211.8151

Media Relations: ICR, Inc. Matt Lindberg 203.682.8214

 

 

v3.23.3

Cover	Sep. 22, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Sep. 22, 2023
Entity File Number	001-32316
Entity Registrant Name	B&G Foods, Inc.
Entity Central Index Key	0001278027
Entity Tax Identification Number	13-3918742
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	Four Gatehall Drive
Entity Address, City or Town	Parsippany
Entity Address, State or Province	NJ
Entity Address, Postal Zip Code	07054
City Area Code	973
Local Phone Number	401-6500
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.01 per share
Trading Symbol	BGS
Security Exchange Name	NYSE
Entity Emerging Growth Company	false

---