Exhibit 10.1
AMENDMENT No. 1
AMENDMENT No. 1, dated as of June 30, 2023 (this “Amendment”), to the Existing Credit Agreement (as defined below), by and among ENGAGESMART, INC., a Delaware corporation (the “Borrower”) and JPMORGAN CHASE BANK, N.A. as administrative agent and collateral agent (in such capacity, the “Administrative Agent”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement (as defined below).
WHEREAS, the Borrower, the Lenders party thereto from time to time, the L/C Issuers party thereto from time to time and the Administrative Agent are party to that certain Revolving Credit Agreement, dated as of September 27, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”);
WHEREAS, on March 5, 2021, the U.K. Financial Conduct Authority publicly announced that immediately after June 30, 2023 all U.S. Dollar LIBOR settings would no longer be representative resulting in a Benchmark Transition Event under the Existing Credit Agreement;
WHEREAS, pursuant to Section 3.03(e) of the Existing Credit Agreement, the Administrative Agent hereby provides notice to the Borrowers and the Lenders that a Benchmark Transition Event (as defined in the Existing Credit Agreement) has occurred with respect to the LIBO Rate and that LIBO Rate will be replaced with the sum of Term SOFR and the related Benchmark Replacement Adjustment as the Benchmark Replacement for all purposes under the Existing Credit Agreement and any other Loan Document for all settings effective as of July 1, 2023 (but subject to Section 9 below) in accordance with Section 3.03(b) of the Existing Credit Agreement; and
WHEREAS, pursuant to Section 3.03(d) of the Existing Credit Agreement, the Administrative Agent has exercised its right to make certain Benchmark Replacement Conforming Changes to the Existing Credit Agreement and such changes shall become effective on July 1, 2023 (the “Amendment No. Effective Date”), without any further consent of any other party to the Existing Credit Agreement or any other Loan Document.
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to the conditions set forth herein, the parties hereto hereby agree as follows:
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| ENGAGESMART, INC., as Borrower | |||
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| By: |
| /s/ Cassandra Hudson | |
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| Name: | Cassandra Hudson | |
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| Title: | Chief Financial Officer |
| JPMORGAN CHASE BANK, N.A., as Administrative Agent | |||
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| By: |
| /s/ Myles Upchurch | |
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| Name: | Myles Upchurch | |
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| Title: | Authorized Credit Officer |
Annex A
Credit Agreement
Attached.
REVOLVING CREDIT AGREEMENT
dated as of September 27, 2021
as amended by Amendment No. 1 dated as of June 30, 2023
among
ENGAGESMART, INC.,
as the Borrower,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Collateral Agent and an L/C Issuer,
The Other Lenders and L/C Issuers Party Hereto,
and
JPMORGAN CHASE BANK, N.A.,
as Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS | 1 | |||
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| 1.01 | Defined Terms | 1 | |
| 1.02 | Other Interpretive Provisions | 8077 | |
| 1.03 | Accounting Terms | 8280 | |
| 1.04 | [Reserved] | 8280 | |
| 1.05 | Rounding | 8280 | |
| 1.06 | References to Agreements and Laws | 8380 | |
| 1.07 | Times of Day | 8381 | |
| 1.08 | Timing of Payment or Performance | 8381 | |
| 1.09 | [Reserved] | 8381 | |
| 1.10 | Letter of Credit Amounts | 8381 | |
| 1.11 | Pro Forma Calculations | 8381 | |
| 1.12 | Calculation of Baskets | 8381 | |
| 1.13 | Interest Rates; LIBORBenchmarkNotification | 8481 | |
| 1.14 | Divisions. | 8582 |
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ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS | 8582 | |||
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| 2.01 | The Loans | 8582 | |
| 2.02 | Borrowings, Conversions and Continuations of Loans | 8582 | |
| 2.03 | Letters of Credit | 8784 | |
| 2.04 | Cash Collateral | 9592 | |
| 2.05 | Prepayments | 9693 | |
| 2.06 | Termination or Reduction of Commitments | 9895 | |
| 2.07 | Repayment of Loans | 9996 | |
| 2.08 | Interest | 9996 | |
| 2.09 | Fees. | 10097 | |
| 2.10 | Computation of Interest and Fees | 10097 | |
| 2.11 | Evidence of Indebtedness | 10097 | |
| 2.12 | Payments Generally; Administrative Agent’s Clawback | 10198 | |
| 2.13 | Sharing of Payments | 103100 | |
| 2.14 | [Reserved] | 103101 | |
| 2.15 | Extension Offers | 103101 | |
| 2.16 | Incremental Facilities | 106103 | |
| 2.17 | [Reserved] | 108105 | |
| 2.18 | Defaulting Lenders | 108105 | |
| 2.19 | Specified Refinancing Debt | 109106 | |
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ARTICLE III. TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY | 111109 | |||
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| 3.01 | Taxes | 111109 | |
| 3.02 | Illegality | 114112 | |
| 3.03 | Market Disruption; Inability to Determine Rates; Alternative Rate of Interest | 115112 | |
| 3.04 | Increased Cost and Reduced Return; Capital Adequacy | 115112 | |
| 3.05 | Funding Losses | 118116 |
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| 3.06 | Matters Applicable to All Requests for Compensation | 118116 |
| 3.07 | Replacement of Lenders Under Certain Circumstances | 119117 |
| 3.08 | Survival | 121118 |
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ARTICLE IV. CONDITIONS PRECEDENT | 121119 | ||
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| 4.01 | Conditions to the Initial Credit Extension on the Closing Date | 121119 |
| 4.02 | Conditions to All Credit Extensions | 123121 |
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ARTICLE V. REPRESENTATIONS AND WARRANTIES | 123121 | ||
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| 5.01 | Existence, Qualification and Power | 123121 |
| 5.02 | Authorization; No Contravention | 124122 |
| 5.03 | Governmental Authorization; Other Consents | 124122 |
| 5.04 | Binding Effect | 124122 |
| 5.05 | Financial Statements; No Material Adverse Effect | 124122 |
| 5.06 | Litigation | 125122 |
| 5.07 | Use of Proceeds | 125123 |
| 5.08 | Ownership of Property; Liens | 125123 |
| 5.09 | Environmental Compliance | 125123 |
| 5.10 | Taxes | 126124 |
| 5.11 | ERISA Compliance | 126124 |
| 5.12 | Subsidiaries; Capital Stock | 127125 |
| 5.13 | Margin Regulations; Investment Company Act | 127125 |
| 5.14 | Disclosure | 128126 |
| 5.15 | Compliance with Laws, Data Privacy, No Default, Etc | 128126 |
| 5.16 | Intellectual Property; Licenses, Etc | 128126 |
| 5.17 | Solvency | 129126 |
| 5.18 | EEA Financial Institutions | 129126 |
| 5.19 | Labor Matters | 129127 |
| 5.20 | Perfection, Etc | 129127 |
| 5.21 | PATRIOT Act | 129127 |
| 5.22 | Anti-Corruption Laws and Sanctions | 129127 |
| 5.23 | Anti-Money Laundering | 130128 |
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ARTICLE VI. AFFIRMATIVE COVENANTS | 130128 | ||
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| 6.01 | Financial Statements | 130128 |
| 6.02 | Certificates; Other Information | 132130 |
| 6.03 | Notices | 134132 |
| 6.04 | Payment of Taxes | 134132 |
| 6.05 | Preservation of Existence, Etc | 134132 |
| 6.06 | Maintenance of Properties | 135132 |
| 6.07 | Maintenance of Insurance | 135132 |
| 6.08 | Compliance with Laws | 135133 |
| 6.09 | Books and Records | 136133 |
| 6.10 | Inspection Rights | 136133 |
| 6.11 | Use of Proceeds | 136134 |
| 6.12 | Covenant to Guarantee Obligations and Give Security | 136134 |
| 6.13 | Compliance with Environmental Laws | 139136 |
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| 6.14 | Further Assurances | 139137 |
| 6.15 | Information Regarding Collateral and Loan Documents | 139137 |
| 6.16 | Maintenance of Ratings | 139137 |
| 6.17 | Post-Closing Undertakings | 140137 |
| 6.18 | No Change in Line of Business | 140137 |
| 6.19 | Lender Conference Calls | 140138 |
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ARTICLE VII. NEGATIVE COVENANTS | 140138 | ||
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| 7.01 | Liens | 140138 |
| 7.02 | Indebtedness | 140138 |
| 7.03 | Fundamental Changes | 148146 |
| 7.04 | Asset Sales | 150148 |
| 7.05 | Restricted Payments | 151149 |
| 7.06 | [Reserved] | 160158 |
| 7.07 | Financial Covenant | 160158 |
| 7.08 | Dividend and Other Payment Restrictions Affecting Subsidiaries | 160158 |
| 7.09 | Accounting Changes | 162160 |
| 7.10 | Transactions with Affiliates | 162160 |
| 7.011 | Massachusetts Securities Corporation | 166164 |
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ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES | 166164 | ||
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| 8.01 | Events of Default | 166164 |
| 8.02 | Remedies Upon Event of Default | 169167 |
| 8.03 | Right to Cure | 169167 |
| 8.04 | Application of Funds | 170168 |
ARTICLE IX. ADMINISTRATIVE AGENT AND OTHER AGENTS | 172170 | |||
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| 9.01 | Appointment and Authorization of Agents | 172170 | |
| 9.02 | Delegation of Duties | 173171 | |
| 9.03 | Liability of Agents | 173171 | |
| 9.04 | Reliance by Agents. | 173171 | |
| 9.05 | Notice of Default | 174172 | |
| 9.06 | Credit Decision; Disclosure of Information by Agents | 174172 | |
| 9.07 | Indemnification of Agent | 174172 | |
| 9.08 | Agents in their Individual Capacities | 175173 | |
| 9.09 | Successor Agents | 175173 | |
| 9.10 | Administrative Agent May File Proofs of Claim | 177175 | |
| 9.11 | Collateral and Guaranty Matters | 177175 | |
| 9.12 | Secured Cash Management Agreements and Secured Hedge Agreements. | 179177 | |
| 9.13 | Other Agents; Arranger and Managers | 179177 | |
| 9.14 | Appointment of Supplemental Agents, Incremental Arrangers and Specified Refinancing Agents | 180177 | |
| 9.15 | Withholding Taxes | 181179 | |
| 9.16 | Certain ERISA Matters | 182180 | |
| 9.17 | Erroneous Payments | 183181 | |
| 9.18 | Credit Bidding | 182 |
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ARTICLE X. MISCELLANEOUS | 184183 | ||
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| 10.01 | Amendments, Etc. | 184183 |
| 10.02 | Notices; Electronic Communications | 186185 |
| 10.03 | No Waiver; Cumulative Remedies; Enforcement | 188186 |
| 10.04 | Expenses | 188187 |
| 10.05 | Indemnification | 189188 |
| 10.06 | Payments Set Aside | 190189 |
| 10.07 | Successors and Assigns | 190189 |
| 10.08 | Confidentiality | 196195 |
| 10.09 | Setoff | 197196 |
| 10.10 | Interest Rate Limitation | 198197 |
| 10.11 | Counterparts | 198197 |
| 10.12 | Integration; Effectiveness | 198197 |
| 10.13 | Survival of Representations and Warranties | 198197 |
| 10.14 | Severability | 198197 |
| 10.15 | Governing Law; Jurisdiction; Etc. | 199198 |
| 10.16 | WAIVER OF RIGHT TO TRIAL BY JURY | 200198 |
| 10.17 | Binding Effect | 200199 |
| 10.18 | No Advisory or Fiduciary Responsibility | 200199 |
| 10.19 | Affiliate Activities | 200199 |
| 10.20 | Electronic Execution of Assignments and Certain Other Documents | 201200 |
| 10.21 | USA PATRIOT ACT | 201200 |
| 10.22 | Judgment Currency | 201[Reserved] 200 |
| 10.23 | Intercreditor Agreements | 202200 |
| 10.24 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 202200 |
| 10.25 | Acknowledgement Regarding Any Supported QFCs | 202201 |
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SCHEDULES | |||
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| 1.01 |
| Subsidiary Guarantors |
| 2.01 |
| Commitments and Pro Rata Shares |
| 5.08 |
| Material Real Property |
| 5.12 |
| Subsidiaries and Other Equity Investments |
| 5.16 |
| Intellectual Property Matters |
| 5.19 |
| Labor Matters |
| 6.17 |
| Post-Closing Matters |
| 7.01 |
| Existing Liens |
| 7.02 |
| Existing Indebtedness |
| 7.05 |
| Existing Investments |
| 10.02 |
| Administrative Agent’s Office, Certain Addresses for Notices |
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EXHIBITS | |||
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| Form of | |
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| A-1 |
| Committed Loan Notice |
| A-2 |
| Request for L/C Credit Extension |
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| Note |
| C-1 |
| Assignment and Assumption |
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| C-2 |
| Administrative Questionnaire |
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| Guaranty |
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| Security Agreement |
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| Solvency Certificate |
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| G |
| Intercompany Subordination Agreement |
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| First Lien/Second Lien Intercreditor Agreement |
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| I |
| Form of Compliance Certificate |
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| J |
| United States Tax Compliance Certificates |
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| K |
| Optional Prepayment of Loans |
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This REVOLVING CREDIT AGREEMENT dated as of September [ ]27, 2021 (as further amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise) this “Agreement”) among EngageSmart, Inc., a Delaware corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and each, individually, a “Lender”), the L/C Issuers from time to time party hereto and JPMorgan Chase Bank, N.A. (“JPMCB”), as Administrative Agent and as Collateral Agent.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower has requested that, upon the satisfaction (or waiver by the Lenders) in full of the conditions precedent set forth in the applicable provisions of Article IVArticle IV below, the Lenders make available to the Borrower a $75,000,000 revolving credit facility for the making, from time to time, of revolving loans and the issuance, from time to time, of letters of credit, in each case on the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
DEFINITIONS AND ACCOUNTING TERMS
“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) Daily Simple SOFR, plus (b) 0.11448%; provided that if the Adjusted Daily Simple SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of the Agreement.
“Adjusted Term SOFR” means, for any Interest Period, an interest rate per annum equal to (a) the Term SOFR for such Interest Period, plus (b) the applicable Term SOFR Adjustment; provided that if the Adjusted Term SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
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“Anti-Money Laundering Laws” has the meaning specified in Section 5.235.23.
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For the avoidance of doubt, the unwinding of Swap Contracts, Permitted Bond Hedge Transactions or Permitted Warrant Transactions shall not be deemed to constitute an Asset Sale.
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(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is 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; provided further that, in the case of clause (3), when such clause is used to determine the Benchmark Replacement in connection with the occurrence of an Other Benchmark Rate Election, the alternate benchmark rate selected by the Administrative Agent and the Borrower shall be the term benchmark rate that is used in lieu of a LIBOR-based rate in the relevant other Dollar-denominated syndicated credit facilities; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
, 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 (1)
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for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (3) of the definition of “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 thethe Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in Dollars at such time;.
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and
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(b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c3) and even if such Benchmark (or 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;.
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to Section 2.14(c); or
(4) in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the Lenders, written notice of objection to such Early Opt-in Election or Other Benchmark Rate Election, as applicable, from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);
(2) 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 NYFRB, the CME Term SOFR Administrator, 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
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court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, 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
(3) 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 no longer, or as of a specified future date will no longer be, representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03Section 3.03 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03Section 3.03.
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, (a) any day (other than a Saturday, or a Sunday or other day) on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York City; andopen for business in New York City; provided that, in addition to the foregoing, a Business Day shall be any such day that is only a U.S. Government Securities Business Day (a) in relation to RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings of such RFR Loan and (b) in relation to Loans referencing the Adjusted Term SOFR and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR or any other dealings of such Loans referencing the Adjusted Term SOFR.
(b) solely if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any such day described in clause (a) above that is also a London Banking Day.
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Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1)(1) above; provided that such amounts are converted into any currency listed in clause (1)(1) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
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provided that (a) when determining Consolidated Cash Interest Expense in respect of any four-quarter period ending prior to the first anniversary of the Closing Date, Consolidated Cash Interest Expense will be calculated by multiplying the aggregate Consolidated Cash Interest Expense accrued since the Closing Date by 365 and then dividing such product by the number of days from and including the Closing Date to and including the last day of such period and (b) in the case of any Person that became a Restricted Subsidiary of such Person after the commencement of the applicable four-quarter period, the interest expense of such Person paid in cash prior to the date on which it became a Restricted Subsidiary of such Person will be disregarded. For purposes of this definition, interest on Capitalized Lease Obligations will be deemed to accrue at the interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligations in accordance with GAAP.
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provided that the Borrower may, in its sole discretion, elect to not make any adjustment for any item pursuant to the foregoing clauses (1)(1) through (5)(5) above if any such item (x) would result in an increase to Consolidated EBITDA or (y) individually is less than $2,000,000 in any fiscal quarter (and for the avoidance of doubt, any such election to not make an adjustment for a particular period shall not affect the Borrower’s ability to make that adjustment (or any other adjustment) in any future period).
Notwithstanding the foregoing, Consolidated EBITDA for the fiscal quarters ended June 30, 2021, March 31, 2021, December 31, 2020 and September 30, 2020 shall be $7,800,000, $7,900,000, $7,800,000, and $8,900,000, respectively.
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interest income of the referent Person and its Restricted Subsidiaries for such period; provided that (a) when determining Consolidated Interest Expense in respect of any four-quarter period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense will be calculated by multiplying the aggregate Consolidated Interest Expense accrued since the Closing Date by 365 and then dividing such product by the number of days from and including the Closing Date to and including the last day of such period and (b) in the case of any Person that became a Restricted Subsidiary of such Person after the commencement of such four-quarter period, the interest expense of such Person paid in cash prior to the date on which it became a Restricted Subsidiary of such Person will be disregarded. For purposes of this definition, interest on Capitalized Lease Obligations will be deemed to accrue at the interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligations in accordance with GAAP.
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provided that the Borrower may, in its sole discretion, elect to not make any adjustment for any item pursuant to clauses (a)(a) through (aa)(aa) above if any such item (x) would result in an increase to Consolidated Net Income or (y) individually is less than $2,000,000 in any fiscal quarter (and for the avoidance of doubt, any such election to not make an adjustment for a particular period shall not affect the Borrower’s ability to make that adjustment (or any other adjustment) in any future period).
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For the purpose of Section 7.057.05 only, there shall be excluded from Consolidated Net Income any income arising from the sale or other disposition of Restricted Investments, from repurchases or redemptions of Restricted Investments, from repayments of loans or advances which constituted Restricted Investments or from any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries, in each case to the extent such amounts increase the amount of Restricted Payments permitted under such covenant pursuant to clauses (ii)(F) (ii)(F) or (ii)(G) (ii)(G) of the first paragraph thereof.
For the avoidance of doubt and notwithstanding the foregoing, no Permitted Bond Hedge Transaction or Permitted Warrant Transaction shall constitute a “Contingent Obligation”.
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provided that any additional designation permitted by the foregoing shall not apply retroactively to any prior assignment or participation interest or to any (pending or settled) trade to acquire such assignment or participation interest.
Notwithstanding the foregoing, (1) the list of Disqualified Institutions shall be made available to any Lender only upon written request by such Lender, and such Lender may provide the list of Disqualified Institutions to any potential assignee or Participant on a confidential basis (it being understood that the identity of Disqualified Institutions will not be posted or distributed to any person, other than a distribution by the Administrative Agent to a Lender upon written request, and by a Lender to a potential assignee or Participant on a confidential basis), (2) “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time and (3) for the avoidance of doubt, any entity that is a Disqualified Institution under clauses (a)(a) and (b)(b) above may not become a Lender or a Participant due to the fact that it is an Affiliate of an existing Lender. For the purpose of clauses (a)(a) and (b)(b) above, such list shall be made available to the Administrative Agent pursuant to Section 10.0210.02 and any additions, deletions or other modifications to the list of Disqualified Institutions shall become effective three (3) Business Days after receipt by the Administrative Agent (or in the case of clause (a) above, after the requisite consent thereto is received). The Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to, or the restrictions on any exercise of rights or remedies of, any Disqualified Institution.
“Disqualified Stock” means, with respect to any Person, any Equity Interests of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is puttable, redeemable or exchangeable), in each case, at the option of the holder thereof or upon the happening of any event:
in each case prior to the date that is 91 days after the Latest Maturity Date of the Facility at the time of issuance of the respective Disqualified Stock; provided, however, that only the portion of Equity Interests that so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, however, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Borrower or its Subsidiaries or a direct or indirect parent of the Borrower or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries or a direct or indirect parent of the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any class of Equity Interests of such Person that by its terms authorizes
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such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.
“Early Opt-in Election” means, if the then current Benchmark with respect to Dollars is LIBO Rate, the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from LIBO Rate and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders.
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“Eurodollar Base Rate” means, in the case of any Eurodollar Rate Loan for any Interest Period (the “LIBO Rate”):
(i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters screen (or any successor thereto) which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over administration of that rate) (such page currently being the LIBOR01 page) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time), two Business Days prior to the first day of such Interest Period;
(ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum determined by the Administrative Agent to be the offered rate on such other page or other service which displays the Screen Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period; and
(iii) if Screen Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the Screen Rate shall be equal to the applicable Interpolated Screen Rate.
“Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
Eurodollar Rate = | Eurodollar Base Rate |
1.00 – Eurodollar Reserve Percentage |
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provided that the Eurodollar Rate shall not be less than the Floor.
“Eurodollar Rate Borrowing” means a Borrowing of Eurodollar Rate Loans.
“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the definition of “Eurodollar Rate.”
“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental, marginal or other reserve requirement) with respect to eurodollar funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Loan the interest on which is determined by reference to the Eurodollar Rate shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
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provided, however, that Excluded Assets will not include any proceeds, substitutions or replacements of any Excluded Assets (unless such proceeds, substitutions or replacements would otherwise constitute Excluded Assets).
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in each case designated as Excluded Contributions pursuant to an Officer’s Certificate, the proceeds of which are excluded from the calculation set forth in Section 7.05(a)(ii)7.05(a)(ii).
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“First Lien/Second Lien Intercreditor Agreement” means any first lien/second lien intercreditor agreement substantially in the form of Exhibit H, or otherwise in form and substance reasonably satisfactory to the Administrative Agent, among the Collateral Agent, and one or more collateral agents or representatives for the holders of Indebtedness that is secured by the Collateral on a junior basis to the Facility, as the same may be amended, supplemented, modified, replaced or restated from time to time in accordance with this Agreement.
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The term “Indebtedness” (x) shall not include any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practices, or obligations under any license, permit or other approval (or guarantees given in respect of such obligations) Incurred prior to the Closing Date or in the ordinary course of business or consistent with past practices and (y) shall not include Indebtedness of any direct or indirect parent of the Borrower appearing on the balance sheet of the Borrower solely by reason of push-down accounting.
Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:
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(a) (i) if any Interest Period that would otherwise end on a day that is notother than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day falls in anotherwould fall in the next calendar month, in which case such Interest Period shall end on the immediatelynext preceding Business Day;
(b) , (ii) any Interest Period that beginscommences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month at the end of such Interest Period) shall end on the last Business Day of the last calendar month at the end of such Interest Period; and and (iii) no tenor that has been removed from this definition pursuant to Section 3.03(e) shall be available for specification in such Borrowing Request or Interest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
(c) no Interest Period shall extend beyond the applicable Maturity Date of the Facility under which such Loan was made;
“Interpolated Screen Rate” means, with respect to any Eurodollar Rate Borrowing for any Interest Period, a rate per annum which results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which a Screen Rate is available that is shorter than such Interest Period and (b) the applicable Screen Rate for the shortest maturity for which a Screen Rate is available that is longer than such Interest Period, in each case as of 11:00 a.m., London time on the day that is two Business Days prior to the first day of such Interest Period, rounded to the same number of decimal places as the two relevant Screen Rates.
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The amount of any Investment outstanding at any time (including for purposes of calculating the amount of any Investment outstanding at any time under any provision of Section 7.057.05 and otherwise determining compliance with covenant) shall be the original cost of such Investment (determined, in the case of any Investment made with assets of the Borrower or any Restricted Subsidiary, based on the Fair Market Value of the assets invested and without taking into account subsequent increases or decreases in value), reduced (but not to less than $0) by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment and shall be net of any Investment by such Person in the Borrower or any Restricted Subsidiary.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
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“Other Benchmark Rate Election” means, if the then-current Benchmark is the LIBO Rate, the occurrence of:
(a) a request by the Borrower to the Administrative Agent to notify each of the other parties hereto that, at the determination of the Borrower, Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed), in lieu of a LIBOR-based rate, a term benchmark rate as a benchmark rate, and
(b) the Administrative Agent, in its sole discretion, and the Borrower jointly elect to trigger a fallback from the LIBO Rate and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders.
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For all purposes hereunder, (w) a Lien need not be Incurred solely by reference to one category of Permitted Liens described in this definition but may be Incurred under any combination of such categories (including in part under one such category and in part under any other such category), (x) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition, (y) in the event that a portion of the Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (24)(24) above (giving effect to the Incurrence of such portion of such Indebtedness), the Borrower in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect thereof) as having been secured pursuant to clause (24)(24) above and thereafter the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition and (z) in the event that a portion of the Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (24)(24) above (giving effect to the Incurrence of such portion of such Indebtedness), any calculation of the Consolidated First Lien Net Leverage Ratio or
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the Consolidated Senior Secured Net Leverage Ratio, as applicable, on such date of determination shall not include any such Indebtedness (and shall not give effect to any netting of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of this definition.
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The grant of a security interest in any accounts receivable of the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to secure any credit agreement shall not be deemed a Qualified Receivables Factoring.
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The grant of a security interest in any accounts receivable of the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to secure any credit agreement shall not be deemed a Qualified Receivables Financing.
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Any such designation by the Board of Directors of the Borrower or any direct or indirect parent hereof shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution of the Board of Directors of the Borrower or such parent giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conditions.
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“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“Relevant Rate” means (i) with respect to any Term Benchmark Borrowing, the Adjusted Term SOFR or (ii) with respect to any RFR Borrowing, the Adjusted Daily Simple SOFR, as applicable.
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“Screen Rate” means with respect to the Eurodollar Rate for any Interest Period, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over administration of that rate) for the relevant currency and Interest Period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate) (the foregoing paragraph, the “LIBO Screen Rate”).
If such page or service ceases to be available, the Administrative Agent may specify another page or service, displaying the relevant rate after consultation with the Borrower; provided that, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion. If, as to any currency, no Screen Rate shall be available for a particular Interest Period but Screen Rates shall be available for maturities both longer and shorter than such Interest Period, then the Screen Rate for such Interest Period shall be the Interpolated Screen Rate.
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“Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR.
“Term SOFR Adjustment” means (a) for an Interest Period of one month, 0.11448%, (b) for an Interest Period of three months, 0.26161% and (c) for an Interest Period of six months, 0.42826%.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body. Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term SOFR Transition Event.” means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable (and, for the avoidance of doubt, not in the case of an Other Benchmark Rate Election), has previously occurred resulting in a Benchmark Replacement in accordance with Section 3.03 that is not Term SOFR.
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the date of determination of such ratio or basket, the accuracy of such representation or warranty (but taking into account any earlier date specified therein) or whether any Default or Event of Default has occurred, in each case as set forth above, is continuing or would result therefrom, shall at the option of the Borrower (the election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be deemed to be (x) in the case of any Restricted Payment, the date the relevant Restricted Payment is declared, (y) in the case of any such debt repayment, the date the notice of such repayment, redemption, repurchase or refinance of Indebtedness is delivered and (z) in the case of any other Limited Condition Transactions, the date the definitive agreements for such Limited Condition Transactions are entered into or the date such Limited Condition Transaction is publicly announced (any such date, an “LCT Test Date”).
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THE COMMITMENTS AND CREDIT EXTENSIONS
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The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the instructions of the Borrower or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against any L/C Issuer and its correspondents unless such notice is given as aforesaid.
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A notice of the Administrative Agent to the Borrower with respect to any amount owing under this Section 2.12(b)2.12(b) shall be conclusive, absent manifest error.
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For the avoidance of doubt, no Lender shall be required to participate in any Extension.
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TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
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Without limiting the foregoing:
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then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Committed Loan Notice in accordance with the terms of Section 2.02, (A1) any request to convert any Borrowing to, or continuation of any Borrowing as, a Eurodollar RateTerm Benchmark Borrowing shall be ineffective, (B) if any Committed Loan Notice requests a Eurodollar Rate Borrowing in Dollars, such Borrowing shall be made asinstead be deemed to be a request for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 3.03(a)(i) or 3.03(a)(ii) above or (y) a Base Rate Borrowing and (C) if any Committed Loan Notice requests a Eurodollar Rate Borrowing for the
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relevant rate above, then such request shall be ineffectiveif the Adjusted Daily Simple SOFR also is the subject of Section 3.03(a)(i) or 3.03(a)(ii) above and (2) any request for an RFR Borrowing shall instead be deemed to be a request, as applicable, for a Base Rate Borrowing; provided, that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
Furthermore, if any Eurodollar RateTerm Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 3.03(a)Section 3.03(a) with respect to the applicable Eurodollar Ratea Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, then with respect to the relevant Benchmark and (y) the Borrower delivers a new Committed Loan Notice in accordance with the terms of Section 2.02, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall, be converted by the Administrative Agent to, and shall constitute, a Base Rate Loan on such day.(x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 3.03(a)(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR also is the subject of Section 3.03(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related and (y) if a Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmarkis determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace the then-currentsuch Benchmark for all purposes hereunder orand under any Loan Document in respect of suchany Benchmark setting and subsequent Benchmark settings,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; provided that, this clause (c) shall not be effective unless so long as the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
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(b) (ii) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Eurodollar RateTerm Benchmark Loan on the date or in the amount notified by the Borrower; or
(c) (iii) any mandatory assignment of such Lender’s Eurodollar RateTerm Benchmark Loans pursuant to Section 3.073.07 on a day other than the last day of the Interest Period for such Loans; or
including, in each case, any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained, but excluding any loss for which no reasonable means of calculation exist, as set forth in Section 3.033.03.
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CONDITIONS PRECEDENT
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Without limiting the generality of the provisions of Section 9.039.03, for purposes of determining compliance with the conditions specified in this Section 4.014.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar RateTerm Benchmark Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified
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in Sections 4.02(a)4.02(a) and (b)(b) have been satisfied (unless waived) on and as of the date of the applicable Credit Extension.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent, the Collateral Agent and the Lenders (immediately after giving effect to the Transactions) on the Closing Date and on each other date thereafter on which a Credit Extension is made that:
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(c) Since the Closing Date, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
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AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements) hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (other than Letters of Credit which have been Cash Collateralized or as to which arrangements reasonably satisfactory to the L/C Issuer that issued such Letters of Credit shall have been made), (A) the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 6.01, 6.02 and 6.036.03) cause each Restricted Subsidiary to and (B) with respect to Section 6.146.14, the Borrower shall:
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Notwithstanding the foregoing:
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The information required by Section 6.01(a)6.01(a) or (b)(b) may be included in materials furnished pursuant to Section 6.02��6.02, but the foregoing shall not be in derogation of the Borrower’s obligation to furnish the information and materials described in Sections 6.01(a)6.01(a) and (b)(b) above at the times specified therein.
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provided that none of the Borrower or any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (x) that constitutes trade secrets or proprietary information, (y) in respect of which disclosure to the Administrative Agent or any Lender (or their representatives or contractors) is prohibited by Law, fiduciary duty or any binding agreement or (z) that is subject to any privilege (including attorney client or similar privilege) or constitutes attorney work product.
Documents required to be delivered pursuant to Section 6.01(a), (b) or (c)6.01(a) or (b) or Section 6.02(b), (c) or (d) 6.02(b), (c) or (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet; or (ii) on which such documents are posted on the Borrower’s behalf on the Platform or another relevant Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the
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Administrative Agent); provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents to the extent requested by the Administrative Agent. The Administrative Agent shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for timely accessing posted documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks/IntraAgency, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.0710.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding anything herein to the contrary, financial statements delivered pursuant to Sections 6.01(a) and (b) and Compliance Certificates delivered pursuant to Section 6.02(a) (other than any such portion of a Compliance Certificate that the Borrower marks as containing material non-public information, which information shall be redacted in the version posted to Public Side Lenders) shall be deemed to be suitable for posting on a portion of the Platform designated “Public Side Information.”
(d) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause, either individually or in the aggregate, a Material Adverse Effect.
Each notice pursuant to this Section 6.036.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
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NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations as to which no claim has been asserted, obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements and Letters of Credit which have been Cash Collateralized or as to which arrangements reasonably satisfactory to the L/C Issuer that issued such Letters of Credit shall have been made) hereunder which is accrued and payable shall remain unpaid or unsatisfied:
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(w) for any such Indebtedness that is secured by the Collateral on a pari passu basis with the Loans, the Consolidated First Lien Net Leverage Ratio for the most recently ended Test Period prior to such date of determination, on a Pro Forma Basis, does not exceed the greater of (i) 4.50:1.00 or (ii) the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness;
(x) for any such Indebtedness that is secured by the Collateral on a junior basis to the Loans, the Consolidated Senior Secured Net Leverage Ratio for the most recently ended Test Period prior to such date of determination, on a Pro Forma Basis, does not exceed the greater of (i) 4.50:1.00 or (ii) the Consolidated Senior Secured Net Leverage Ratio immediately prior to the incurrence of such Indebtedness;
(y) [reserved];
(z) for any such Indebtedness that is unsecured, Disqualified Stock or Preferred Stock, the Consolidated Total Net Leverage Ratio for the most recently ended Test Period prior to such date of determination, on a Pro Forma Basis, does not exceed the greater of (A) 4.50:1.00 or (B) the Consolidated Total Net Leverage Ratio immediately prior to the incurrence of such Indebtedness;
provided, further, that (1) the aggregate amount of Indebtedness Incurred and Disqualified Stock or Preferred Stock that may be issued pursuant to this clause (15)(15) by non-Loan Parties (together with the aggregate amount of Ratio Debt Incurred or issued by non-Loan Parties) shall not exceed the greater of (x) $7,500,000 and (y) 25% of the EBITDA Grower Amount, at any one time outstanding on a Pro Forma Basis (including pro forma application of the proceeds therefrom) and (2) such Indebtedness, Disqualified Stock or Preferred Stock (A) has a Weighted Average Life to Maturity at the time such Indebtedness is Incurred that is not less than the longest then remaining Weighted Average Life to Maturity of the Facility; provided that any such Ratio Acquisitions Debt in the form of Extendable Bridge Loans/Interim Debt may have a Weighted Average Life to Maturity shorter than the then longest remaining Weighted Average Life to Maturity of the Facility and (C) has a Stated Maturity that is no earlier than the Maturity Date applicable to the Facility;
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For purposes of determining compliance with this Section 7.027.02, (i) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of Permitted Debt or is entitled to be Incurred or issued as Ratio Debt or Ratio Acquisitions Debt, the Borrower shall, in its sole discretion, at the time of Incurrence or issuance, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner that complies with this Section 7.027.02; provided that all Indebtedness under this Agreement Incurred on the Closing Date shall be deemed to have been Incurred pursuant to Section 7.02(b)(1)7.02(b)(1), and the Borrower shall not be permitted to reclassify all or any portion of such Indebtedness Incurred on the Closing Date pursuant to Section 7.02(b)(1)7.02(b)(1) and (ii) in the event that the Borrower shall classify Indebtedness Incurred on any date of determination as Incurred in part as Ratio Debt or Ratio Acquisitions Debt and in part pursuant to one or more other clauses of Section 7.027.02, then any calculation of Ratio Debt or Ratio Acquisitions Debt on such date (but not in respect of any future calculation following such date) shall not include any
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such Indebtedness Incurred pursuant to one or more such other clauses of Section 7.027.02 (and shall not give effect to any repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of any Indebtedness from the proceeds thereof). Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms, the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of Disqualified Stock or Preferred Stock of the same class, the accretion of Maximum Fixed Repurchase Price and increases in the amount of Indebtedness, Disqualified Stock or Preferred Stock outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness will not be deemed to be an Incurrence of Indebtedness or issuance of Disqualified Stock or Preferred Stock for purposes of this Section 7.027.02. Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that are otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 7.027.02.
For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness or the issuance of Disqualified Stock or Preferred Stock, the Dollar equivalent principal amount or Maximum Fixed Repurchase Price, as applicable, of Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed or first Incurred (whichever yields the lower Dollar equivalent), in the case of revolving credit debt or debt financing to fund an acquisition, or first issued in the case of Disqualified Stock or Preferred Stock; provided that if such Indebtedness, Disqualified Stock or Preferred Stock is Incurred or issued to refinance other Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, denominated in a foreign currency, and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount or Maximum Fixed Repurchase Price, as applicable, of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount or Maximum Fixed Repurchase Price, as applicable, of such Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus any Refinancing Expenses.
The Borrower may not, and will not permit any of its Restricted Subsidiaries to, merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, consummate a Division as the dividing Person or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that (other than in the case of clause (e)(e) below) so long as no Event of Default would result therefrom:
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(j) any Massachusetts securities corporation may be merged with or into any other Massachusetts securities corporation, the Borrower or a Restricted Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets or the Equity Interests issued by it may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to any other Massachusetts securities corporation, the Borrower or any Restricted Subsidiary; provided, that (i) in the case of a merger with or into the Borrower, the continuing or surviving Person shall be the Borrower, (ii) in the case of a merger with or into any Restricted Subsidiary, if the Massachusetts securities corporation is the continuing or surviving Person, it shall be in compliance with Section 7.11 (including any limitations on Investments that may be made or held by a Massachusetts securities corporation contained therein) and (iii) in the case of a merger with or into any Restricted Subsidiary, if such Restricted Subsidiary is the continuing or surviving Person, it shall be in compliance with Section 6.12.
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provided that the Borrower and its Restricted Subsidiaries will be deemed to have complied with the provisions described in clause (2)(2) or (3)(3) of this paragraph if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Borrower or such Restricted Subsidiary, as applicable, has entered into and not abandoned or rejected a binding agreement to make an investment in compliance with the provision described in clauses (2)(2) or (3)(3) of this paragraph, and that investment is thereafter completed within 180 days after the end of such 365-day period.
Pending the final application of any such amount of Net Cash Proceeds pursuant to this Section 7.04(b)7.04(b), the Borrower or such Restricted Subsidiary, at its option, may temporarily reduce Indebtedness under a revolving credit facility, or otherwise invest or utilize such Net Cash Proceeds in any manner not prohibited by this Agreement.
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Notwithstanding anything contained in this Section 7.04 to the contrary, in no event shall (a) the Borrower or any Restricted Subsidiary be permitted to make any Asset Sale of Material Intellectual Property to the Borrower’s direct or indirect equityholders (other than pursuant to a bona fide “transition service” or similar arrangement or in the same manner as other customers, suppliers or commercial partners of the relevant transferee generally) or (b) any Borrower Party make any Asset Sale, constituting either a transfer of ownership or an exclusive license, of any Material Intellectual Property to any Unrestricted Subsidiary, other than in connection with transactions that have a bona fide business purpose and so long as such transactions are not undertaken to facilitate a financing or a Restricted Payment or undertaken in connection with a liability management transaction.
(all such payments and other actions set forth in clauses (1)(1) through (4)(4) above being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
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(x) the sale or other disposition (other than to the Borrower or a Subsidiary of the Borrower) of Restricted Investments made after the Closing Date by any Borrower Party and from repurchases and redemptions of such Restricted Investments from a Borrower Party by any Person (other than the Borrower or any of its Subsidiaries) and from repayments of loans or advances which constituted Restricted Investments (other than in each case to the extent that the Restricted Investment was made pursuant to Section 7.05(b)(10) or (19)7.05(b)(10) or (19)),
(y) the sale (other than to any Borrower Party or an employee stock ownership plan or trust established by a Borrower Party (other than to the extent
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such employee stock ownership plan or trust has been funded by a Borrower Party or to the extent that such Investment constituted a Permitted Investment or a Restricted Investment made pursuant to Section 7.05(b)(10) or (19)7.05(b)(10) or (19))) of the Equity Interests of an Unrestricted Subsidiary, or
(z) any distribution or dividend from an Unrestricted Subsidiary (to the extent such distribution or dividend is not already included in the calculation of Consolidated Net Income and other than the amount of any Permitted Investment or any Restricted Investment made pursuant to Section 7.05(b)(19)7.05(b)(19)), plus
(y) the declaration and payment of accrued dividends on the Retired Capital Stock out of the proceeds of the issuance or sale (other than to a Subsidiary of the Borrower or to an employee stock ownership plan or any trust established by the Borrower or any of its Subsidiaries) of Refunding Capital Stock; and
(z) if immediately prior to the retirement of the Retired Capital Stock, the declaration and payment of dividends thereon was permitted under this covenant and has not been made as of such time (the “Unpaid Amount”), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of the Borrower or any direct or indirect parent) in an aggregate amount no greater than the Unpaid Amount (with the payment of such Unpaid Amount being treated as a payment under the applicable provision);
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provided that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (i), (ii) and (iii) above in any calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, current or former officer, director, employee, manager, consultant or independent contractor (or any permitted transferees thereof) of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent of the Borrower, in connection with a repurchase of Equity Interests of the
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Borrower or any direct or indirect parent of the Borrower from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section 7.057.05 or any other provisions of this Agreement;
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(25) Restricted Payments made, within 30 days of the Closing Date, using proceeds from the Closing Date IPO (or such longer time as agreed by the Administrative Agent in its discretion).
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except in each case for such encumbrances or restrictions existing under or by reason of:
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For purposes of determining compliance with this Section 7.087.08 (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Borrower or a Restricted Subsidiary of the Borrower to other Indebtedness Incurred by the Borrower or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
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EVENTS OF DEFAULT AND REMEDIES
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provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under any Debtor Relief Law, the obligation of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
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provided that no amounts received from any Guarantor shall be applied to Excluded Swap Obligations of such Guarantor. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired without any pending drawing, such remaining amount shall be applied to the other Obligations, if any, in accordance with the priority of payments set forth above. Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application of payments described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IXArticle IX for itself and its Affiliates as if a “Lender” party hereto.
ADMINISTRATIVE AGENT AND OTHER AGENTS
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent under Section 10.0410.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
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Upon request by the Collateral Agent at any time, the Required Lenders or the Administrative Agent on their behalf 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 Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.119.11; provided that absent such confirmation in writing from the Required Lenders, the act of the Administrative Agent or the Collateral Agent making such request shall not prohibit the Administrative Agent or the Collateral Agent from releasing or subordinating its interests if it otherwise conclusively relies on an Officer’s Certificate of the Borrower. In each case as specified in this Section 9.119.11, the applicable Agent will (and each Lender and each L/C Issuer irrevocably authorizes the applicable Agent to, without any further consent from any Lender or L/C Issuer), at the Borrower’s expense, promptly execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Subsidiary Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.119.11 and will return possessory Collateral held by it that is released from the security interests created by the Collateral Documents pursuant to this Section 9.119.11; provided that in each case, upon the Collateral Agent’s reasonable request without further inquiry, the Borrower shall have delivered to the Collateral Agent or Administrative Agent an Officer’s Certificate certifying that any such transaction has been consummated in compliance with this Agreement and the other
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Loan Documents (and for the avoidance of doubt, no other documentation or information shall be required to be provided by the Borrower or any Restricted Subsidiary); provided, further, that in the event that the Collateral Agent loses or misplaces any possessory collateral delivered to the Collateral Agent by the Borrower, upon the reasonable request of the Borrower, the Collateral Agent shall provide a loss affidavit to the Borrower, in form and substance reasonably satisfactory to the Borrower.
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To the extent required by any applicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 3.013.01, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, all Taxes and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.159.15. The agreements in this Section 9.159.15 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
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MISCELLANEOUS
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(k) (i) subordinate all or substantially all of the Liens on the Collateral in any transaction or series of related transactions, without the written consent of each Lender or (ii) subordinate the Borrower’s payment obligations under this Agreement to the Borrower’s payment obligations under any other third-party indebtedness for borrowed money;
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and provided, further that (i) no amendment, waiver or consent shall, unless in writing and signed by an L/C Issuer in addition to the Lenders and Loan Parties required above, affect the rights or duties of such L/C Issuer, in its capacity as such, under this Agreement or any Letter of Credit Application or other Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent or Collateral Agent, in its capacity as such, in addition to the Lenders and Loan Parties required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or Collateral Agent under this Agreement or any other Loan Document and (iii) Section 10.07(g)10.07(g) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification.
Notwithstanding anything to the contrary herein:
This Section 10.0110.01 shall be subject to any contrary provision of Sections 2.162.16 or 2.192.19. In addition, notwithstanding anything else to the contrary contained in this Section 10.0110.01, (a) amendments and modifications in connection with the transactions provided for by Section 2.162.16 or Section 2.192.19 that benefit existing Lenders may be effected without such Lenders’ consent, (b) if the Administrative Agent and the Borrower shall have jointly identified an error, ambiguity or omission, defect or inconsistency of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision and (c) the Administrative Agent and the Borrower shall be permitted to amend any provision of any Collateral Document or Guaranty, or enter into any new agreement or instrument, to better implement the intentions of this Agreement and the other Loan Documents, and in each case, such amendments, documents and agreements shall become effective without any further action or consent of any other party to any Loan Document (if with respect to amendments contemplated by clause (b), the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof).
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Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b)(b) below shall be effective as provided in such subsection (b)(b).
Unless the Administrative Agent otherwise prescribes (with the Borrower’s consent), (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.028.02 for the benefit of all the Lenders and L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent or the Collateral Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent or Collateral Agent, as applicable) hereunder and under the other Loan Documents, (b) each L/C
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Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as an L/C Issuer) hereunder and under the other Loan Documents or (c) any Lender from exercising setoff rights in accordance with Section 10.0910.09 (subject to the terms of Section 2.132.13), and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.028.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.132.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(c)10.07(c), from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment, and subject to the obligations set forth in Section 10.0810.08). Upon request, and the surrender by the assigning Lender of its Note (or, in lieu thereof, a lost note affidavit and indemnity reasonably acceptable to the Borrower), the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement (other than any purported assignment or transfer to a Disqualified Institution) that does not comply with this clause (b)(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(d)10.07(d). Notwithstanding anything to the contrary herein, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to, or the restrictions on any exercise of rights or remedies of, any Disqualified Institution.
If any assignment is made to any Disqualified Institution without the Borrower’s prior written consent or otherwise in violation of this Section 10.0710.07, the Borrower may (in its sole discretion), at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent, (1) in the case of outstanding Loans held by such Disqualified Institution, purchase or prepay such Loan (and cancel such Commitment) by paying an amount equal to (A) the lesser of (x) the outstanding principal amount of such Loans and (y) the amount that such Disqualified Institution paid to acquire such Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents, without premium, penalty, prepayment fee
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or any obligation to pay any amounts that would otherwise be due under Section 3.053.05 less (B) any fees and expenses of the Borrower directly related thereto, and/or (2) require such Disqualified Institution to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in this Section 10.0710.07), all of its interest, rights and obligations under this Agreement and the other Loan Documents to one or more Eligible Assignees at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such interests, rights and obligations (it being understood that, with respect to any such assignment of Loans, no consent to such assignment that would otherwise be required pursuant to Section 10.07(b)10.07(b) (other than, for the avoidance of doubt, the consent of the Borrower) shall be required to be obtained), in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents, without premium, penalty, prepayment fee or any obligation to pay any amounts that would otherwise be due under Section 3.053.05; provided that such assignment does not conflict with applicable laws.
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For the purposes of this Section 10.0810.08, “Information” means all information received from any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their respective businesses, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.0810.08 by an Agent, Lender or L/C Issuer. Any Person required to maintain the confidentiality of Information as provided in this Section 10.0810.08 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
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Each Agent, each Lender and each L/C Issuer acknowledges that (i) the Information may include material non-public information concerning the Borrower or a Subsidiary thereof, as the case may be, (ii) it has developed compliance procedures regarding the use of material non-public information and (iii) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
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(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 entity, 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
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connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| ENGAGESMART, INC., as Borrower | |
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