(b) Voluntary. The Borrowers may terminate the Commitments, or from time to time reduce the Maximum Commitment, by giving prior irrevocable written notice to the Administrative Agent of such termination or reduction three (3) Business Days (or such shorter time as the Administrative Agent may permit) prior to the effective date of such termination or reduction (which date shall be specified by the Borrowers in such notice): (a)(i) in the case of complete termination of the Commitments, upon prepayment by the applicable Borrowers of all of the outstanding Obligations, including, without limitation, all fees and interest accrued thereon, in accordance with the terms of Section 2.05 hereof; or (ii) in the case of a reduction of the Maximum Commitment, upon prepayment of the amount by which the Dollar Equivalent of the Principal Obligations exceed the reduced Maximum Commitment resulting from such reduction, including, without limitation, payment of all fees and interest accrued thereon, in accordance with the terms of Section 2.07 hereof, provided that, except in connection with a termination of all of the Commitments, the Maximum Commitment may not be reduced such that, upon such reduction, the Maximum Commitment is less than the Dollar Equivalent of the aggregate stated amount of (i) outstanding Letters of Credit plus (ii) the amount indicated in all outstanding Requests for Letter of Credit; and (b) in the case of the complete termination of the Commitments, if any Letter of Credit Liability exists, upon payment to the Administrative Agent for deposit in a segregated interest-bearing cash collateral account, as security for the Letter of Credit Liability, an amount equal to the Letter of Credit Liability then outstanding at the time such notice is given in the applicable Currencies of such outstanding Letters of Credit, without presentment, demand, protest or any other notice of any kind, all of which are hereby waived. Unless otherwise required by law, upon the full and final payment of the Letter of Credit Liability, or upon the termination of all outstanding Letter of Credit Liability due to the expiration of all outstanding Letters of Credit prior to draws thereon, the Administrative Agent shall return to the applicable Borrowers any amounts remaining in said cash collateral account; provided that, to the extent individual Letters of Credit expire, the Administrative Agent will return to the applicable Borrower the corresponding amount of the expired Letter of Credit Liability, unless (and only so long as) a Default or an Event of Default has occurred and is continuing. Notwithstanding the foregoing: (1) any reduction of the Maximum Commitment shall be in an amount equal to $5,000,000 or multiples thereof (or such other amount as agreed by the Administrative Agent); and (2) in no event shall a reduction by the Borrowers reduce the Maximum Commitment to less than $25,000,000 (except for a termination of all the Commitments). Promptly after receipt of any notice of reduction or termination, the Administrative Agent shall notify each Lender of the same. Any reduction of the Maximum Commitment shall reduce the Commitments of the Lenders on a pro rata basis, subject to Section 2.02 hereof.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Commitments under this Section 2.08. Upon any reduction of the Commitments, the Commitment of each Lender shall be reduced by such Lender’s Pro Rata Share of the amount by which the Commitments are reduced. All fees in respect of the Facility accrued until the effective date of any termination of the Facility shall be paid on the effective date of such termination.
Section 2.09. Increased Costs; Capital Adequacy.
(a) Compensation for Increased Costs and Taxes; Change in Law. Subject to the provisions of Section 2.10 (which shall be controlling with respect to the matters covered thereby), if any Lender or Letter of Credit Issuer shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that as a result of any Change in Law, there shall be any increase to the cost to such Lender or Letter of Credit Issuer of agreeing to make, making or maintaining Loans or issuing or participating in Letters of Credit hereunder (including the imposition, modification or application of any reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in
Regulation D)) or a reduction in any amount received or receivable by such Lender or Letter of Credit Issuer (or its applicable lending office) in connection with any of the foregoing (excluding for purposes of this Section 2.09(a) any such increased costs or reduction in amount resulting from (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes), then, in any such case, the Borrowers shall promptly pay to such Lender or Letter of Credit Issuer, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or in a lump sum or otherwise as such Lender or Letter of Credit Issuer in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender or Letter of Credit Issuer shall deliver to the Borrower Representative (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender or Letter of Credit Issuer under this Section 2.09(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(b) Capital Adequacy and Liquidity Adjustment. If any Lender or Letter of Credit Issuer shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that (i) any Change in Law regarding capital adequacy or liquidity or (ii) compliance by any Lender (or its applicable lending office) or any company controlling such Lender with any Change in Law regarding capital adequacy or liquidity has or would have the effect of reducing the rate of return on the capital of such Lender or Letter of Credit Issuer or any company controlling such Lender or Letter of Credit Issuer as a consequence of, or with reference to, such Lender’s Loans, such Letter of Credit Issuer’s Letters of Credit or, in each case, participations therein or other obligations hereunder with respect to the Loans or Letters of Credit to a level below that which such Lender or such controlling company could have achieved but for such Change in Law (taking into consideration the policies of such Lender or Letter of Credit Issuer or such controlling company with regard to capital adequacy and liquidity), then from time to time, within twenty (20) Business Days after receipt by the Borrower Representative from such Lender or Letter of Credit Issuer of the statement referred to in the next sentence, the Borrowers shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or Letter of Credit Issuer or such controlling company on an after‑tax basis for such reduction. Such Lender or Letter of Credit Issuer shall deliver to the Borrower Representative (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender or Letter of Credit Issuer under this Section 2.09(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(c) Delay in Requests. Failure or delay on the part of any Lender or Letter of Credit Issuer to demand compensation pursuant to this Section 2.09 shall not constitute a waiver of such Lender’s or Letter of Credit Issuer’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender or Letter of Credit Issuer pursuant to this Section 2.09 for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s or Letter of Credit Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(d) Compensation. Any request for compensation pursuant to clauses (a) or (b) of this Section 2.09 as a result of a Change in Law shall only be honored to the extent such Lender or Letter of Credit Issuer represents that such Lender or Letter of Credit Issuer is generally seeking compensation from similarly situated borrowers under similar credit facilities with respect to such Change in Law.
Section 2.10. Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. Any and all payments (including, for the avoidance of doubt, any PIK Interest) by or on account of any obligation of any Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by such Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.10) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by Borrowers. Each Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnification. (i) Without duplication or limitation of any amounts payable by the Borrowers under Section 2.10(a) or (b), each Borrower shall jointly and severally indemnify each Recipient, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.10) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Borrower (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(ii) Each Lender shall, and does hereby, severally indemnify the Administrative Agent (and shall make payment in respect thereof within ten (10) days after written demand therefor): (A) against any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrowers have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrowers to do so); (B) against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(f) relating to the maintenance of a Participant Register; and (C) against any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender, as the case may be, under this Agreement or any other Loan Document or otherwise payable by the Administrative Agent to the Lenders from any other source against any amount due to the Administrative Agent under this Section 2.10(c)(ii).
(d) Evidence of Payments. As soon as practicable after any payment of Taxes by any Borrower to a Governmental Authority pursuant to this Section 2.10, Borrower Representative shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of the Lenders; Tax Documentation.
(i) If any Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document, such Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by any Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by any Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.10(e)(ii)(A), Section 2.10(e)(ii)(B) and Section 2.10(e)(ii)(D)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, if any Borrower is a U.S. Person:
(A) any Lender that is a U.S. Person shall deliver to such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; and
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative (and the Borrower Representative shall deliver to such Borrower) and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty; and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code; (x) a certificate substantially in the form of Exhibit F-1 hereto to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to such Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”); and (y) executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable; or
(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 hereto or Exhibit F-3 hereto, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 hereto on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of any Borrower or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit such Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by any Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by such Borrower or the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for the purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 2.10 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. If any Recipient determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Borrower or with respect to which any Borrower has paid additional amounts pursuant to this Section 2.10, it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section 2.10 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that such indemnifying party, upon the request of such Recipient, agrees to repay the amount paid pursuant to this subsection (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Recipient in the event such Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to an indemnifying party pursuant to this subsection (f) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.10(f) shall not be construed to require the Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other person.
(g) Survival. Each party’s obligations under this Section 2.10 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or a Letter of Credit Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all Obligations under any Loan Document.
Section 2.11. Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent), from time to time, Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:
(a) any payment or prepayment of any Loan on a day other than the Interest Payment Date for such Loan (whether automatic, by reason of acceleration, or otherwise); or
(b) any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to convert, prepay or borrow any Loan on the date or in the amount as notified by any Borrower;
excluding any loss of anticipated profits and 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.
Section 2.12. [Reserved].
Section 2.13. Applicable Lending Office.
(a) Each Lender may make, carry or transfer Loans at, to, or for the account of one of its Affiliates; provided that such Lender shall not be entitled to receive any greater amount under Section 2.09 or Section 2.10 as a result of the transfer of any such Loan than such Lender would be entitled to immediately prior thereto unless (a) such transfer occurred at a time when circumstances giving rise to the claim for such greater amount did not exist or (b) such claim would have arisen even if such transfer had not occurred. Notwithstanding any other provision of this Agreement, each Lender shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit.
(b) If any Lender requests compensation under Section 2.09, or requires the Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.10, then, at the request of Borrowers, such Lender shall use reasonable efforts to mitigate the effects of the event giving rise to such request or payment, including, in the case of a Lender, designate a different lending office for funding or booking its Loans or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation, assignment or other action: (a) would eliminate or reduce amounts payable pursuant to Section 2.09 or Section 2.10, as the case may be, in the future; and (b) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation, assignment or other action.
Section 2.14. Rates.
(a) Illegality. If any Lender reasonably determines that any Applicable Law adopted after the Closing Date or if later, with respect to any Lender, after the date such Lender became a Lender hereunder, has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Eurocurrency Rate Loans or RFR Loans, or to determine or charge interest rates based upon the applicable Eurocurrency Rate or RFR or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or take deposits of any Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans in the relevant Currency or to Convert Loans to such applicable RFR Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrowers pursuant to Section 2.14(b) hereof that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice: (i) the applicable Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate Loans or RFR Loans denominated in an Alternative Currency to Loans bearing interest at the Cost of Funds Rate or RFR Loans denominated in Dollars of such Lender to Reference Rate Loans (with an interest rate that shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Daily Simple RFR for Dollars component of the Reference Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans or RFR Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans or RFR Loans; and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the applicable RFR, the Administrative Agent shall during the period of such suspension compute the Reference Rate applicable to such Lender without reference to the Daily Simple RFR for Dollars component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon such applicable RFR. Upon the prepayment of any such Loans, the applicable Borrowers shall also pay interest on the amount so prepaid. Each Lender agrees to designate a different applicable lending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.
(b) Treatment of Affected Loans.
(i) Subject to Section 2.14(a), in connection with any RFR Loan or any Reference Rate Loan, a Loan Notice therefor, a Conversion thereto or a Rollover thereof or otherwise, if for any reason (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that (x) if Daily Simple RFR is utilized in any calculations hereunder or under any other Loan Document with respect to any Obligations, interest, fees,
commissions or other amounts, “Daily Simple RFR” cannot be determined pursuant to the definition thereof, or (y) if Term RFR is utilized in any calculations hereunder or under any other Loan Document with respect to any Obligations, interest, fees, commissions or other amounts, “Term RFR” cannot be determined pursuant to the definition thereof on or prior to the first day of any Interest Period, or (ii) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that a fundamental change has occurred in the foreign exchange markets with respect to an applicable Alternative Currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), then the Administrative Agent shall promptly give notice thereof to the Borrowers and the Lenders. Upon notice thereof by the Administrative Agent to the Borrowers and the Lenders, (A) any obligation of the Lenders to make RFR Loans in each such Currency, and any right of the Borrowers to convert any Loan in each such Currency (if applicable) or Rollover any Loan as an RFR Loan in each such Currency (if applicable), shall be suspended (to the extent of the affected RFR Loans or, in the case of Term RFR Loans, the affected Interest Periods) until the Administrative Agent revokes such notice and (B) if such determination affects the calculation of the Reference Rate, the Administrative Agent shall during the period of such suspension compute the Reference Rate without reference to clause (c) of the definition of “Reference Rate” until the Administrative Agent revokes such notice. Upon receipt of such notice, (A) the Borrowers may revoke any pending Loan Notice of, Conversion Notice to or Rollover Notice of RFR Loans in each such affected Currency (to the extent of the affected RFR Loans or, in the case of Term RFR Loans, the affected Interest Periods) or, failing that, (I) in the case of any Loan Notice of any affected RFR Loans in Dollars, the Borrowers will be deemed to have converted any such request into a Loan Notice of or Conversion Notice to Reference Rate Loans in the amount specified therein, and (II) in the case of any Loan Notice of any affected RFR Loans in an Alternative Currency, then such request shall be ineffective, and (B)(I) any outstanding affected RFR Loans denominated in Dollars will be deemed to have been converted into Reference Rate Loans immediately or, in the case of Term RFR Loans, at the end of the applicable Interest Period, and (II) any outstanding affected RFR Loans denominated in an Alternative Currency, at the Borrowers’ election, shall either (1) be converted into Reference Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or, in the case of Term RFR Loans, at the end of the applicable Interest Period, or (2) be prepaid in full, together with accrued interest thereon, immediately or, in the case of Term RFR Loans, at the end of the applicable Interest Period; provided that if no election is made by the Borrowers by the date that is three (3) Business Days after receipt by the Borrowers of such notice or, in the case of Term RFR Loans, the last day of the current Interest Period for the applicable RFR Loan, if earlier, the Borrowers shall be deemed to have elected clause (1) above. Upon any such prepayment or conversion, the applicable Borrowers shall also pay any additional amounts required pursuant to Section 2.11.
(ii) Subject to Section 2.14(a), if, for any reason on or prior to the first day of any Interest Period with respect to a Eurocurrency Rate Loan, a Loan Notice therefor, a Conversion thereto or a Rollover thereof or otherwise, (w) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that deposits are not being offered to banks in the applicable interbank market for the applicable Currency, amount and Interest Period of such Loan, (x) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that a fundamental change has occurred in the foreign exchange or interbank markets with respect to the applicable Alternative Currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), (y) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for the ascertaining the Eurocurrency Rate for such Currency and Interest
Period, including because any screen rate for the applicable Currency is not available or published on a current basis, or (z) the Required Lenders determine (which determination shall be conclusive and binding absent manifest error) that the Eurocurrency Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Administrative Agent shall promptly give notice thereof to the Borrowers and the Lenders. Upon notice thereof by the Administrative Agent to the Borrowers and the Lenders, any obligation of the Lenders to make Eurocurrency Rate Loans in each such Currency, and any right of the Borrowers to convert any Loan in each such Currency (if applicable), or Rollover any Loan as a Eurocurrency Rate Loan in each such Currency (in each case, to the extent of the affected Eurocurrency Rate Loans or Interest Periods), shall be suspended until the Administrative Agent revokes such notice. Upon receipt of such notice, (A) the Borrowers may revoke any pending Loan Notice of, Conversion Notice to or Rollover Notice of Eurocurrency Rate Loans in each such affected Currency (to the extent of the affected Eurocurrency Rate Loans or the affected Interest Periods) or, failing that, in the case of any Loan Notice of any affected Eurocurrency Rate Loans in such Alternative Currency, then such request shall be ineffective and (B) any outstanding affected Eurocurrency Rate Loans denominated in such Alternative Currency, at the Borrowers’ election, shall either (1) be converted into Reference Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) at the end of the applicable Interest Period or (2) be prepaid in full, together with accrued interest thereon, at the end of the applicable Interest Period; provided that if no election is made by the Borrowers by the date that is three (3) Business Days after receipt by the Borrowers of such notice or, in the case of Eurocurrency Rate Loans, the last day of the current Interest Period for the applicable Eurocurrency Rate Loan, if earlier, the applicable Borrower shall be deemed to have elected clause (1) above. Upon any such prepayment or conversion, the applicable Borrower shall also pay any additional amounts required pursuant to Section 2.11.
(c) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document:
(i) Future Benchmark Replacement. If a Benchmark Transition Event occurs with respect to any then-current Benchmark and a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement”, then such Benchmark Replacement will replace such then-current Benchmark for all purposes hereunder and under each other Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided by the Administrative Agent to the Lenders and the Borrowers without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. At any time that the administrator of a then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the applicable Borrower(s) may revoke any Loan Notice for, Conversion to or Rollover of, a Eurocurrency Rate Loan or RFR Loan that would bear interest by reference to such Benchmark until the applicable Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark and, failing that, such Borrower will be deemed to have converted any such Loan Notice for, Conversion to or Rollover of, a Eurocurrency Rate Loan or RFR Loan into (i) in the case of a Loan denominated in Dollars, a Reference Rate Loan or (ii) in the case of a Loan denominated in an Alternative Currency, a Loan bearing interest at the Cost of Funds Rate.
During the period referenced in the foregoing sentence, the component of the Reference Rate based upon the applicable then-current Benchmark will not be used in any determination of the Reference Rate. Furthermore, if any Eurocurrency Rate Loan or RFR Loan in such Currency (as applicable) is outstanding on the date of the applicable Borrower’s receipt of such notice from the Administrative Agent under this clause (c) with respect to a then-current Benchmark applicable to such Eurocurrency Rate Loan or RFR Loan, then until such time as a Benchmark Replacement for such then-current Benchmark is implemented pursuant to this Section 2.14(c) (including, for the avoidance of doubt, by any amendment to implement any necessary Conforming Changes related thereto) (i) if such RFR Loan is denominated in Dollars, then 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 Reference Rate Loan denominated in Dollars on such day or (ii) if such Eurocurrency Rate Loan or RFR Loan is denominated in an Alternative Currency, then such 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), at such Borrower’s election prior to such day: (A) be prepaid by such Borrower on such day or (B) such Eurocurrency Rate Loan or RFR Loan shall be Converted into Loans bearing interest at the Cost of Funds Rate at such time.
(ii) Term RFR Transition Event. Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term RFR Transition Date has occurred prior to the Reference Time in respect of any setting of the then-current Benchmark consisting of a Daily Simple RFR (including a Daily Simple RFR implemented as a Benchmark Replacement pursuant to clause (c)(i) above for the applicable Currency, then the applicable Benchmark Replacement will replace such Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark for the applicable Currency setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement and each other Loan Document; provided that this clause (c)(ii) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrowers a Term RFR Notice with respect to the applicable Term RFR Transition Event. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term RFR Notice after a Term RFR Transition Event and may elect or not elect to do so in its sole discretion.
(iii) Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document (other than as provided in the definition of Conforming Changes).
(iv) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly (and in any event within five (5) Business Days) notify the Borrowers and the Lenders of (A) any occurrence of a Benchmark Transition Event or Term RFR Transition Event, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Conforming Changes, and (D) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (c)(v) below. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, the Borrowers or any Lender (or group of Lenders) pursuant to this Section 2.14(c), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to
this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.14(c).
(v) Unavailability of Tenor Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if a then-current Benchmark is a term rate (including any Term RFR or Eurocurrency Rate ), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for such Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for such Benchmark (including Benchmark Replacement) settings.
(vi) Tax Matters. The Administrative Agent and, to the extent the Borrowers shall have any consent or consultation right in respect of the selection of such Benchmark Replacement, each such applicable party shall use commercially reasonable efforts to satisfy any applicable Internal Revenue Service guidance, including Proposed Treasury Regulation 1.1001-6 and any future guidance, to the effect that a Benchmark Replacement will not result in a deemed exchange for U.S. federal income tax purposes of any Loan under this Agreement.
Section 2.15. Ratable Sharing. The Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set‑off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code or under analogous provisions of any other Debtor Relief Law, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) that is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify the Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided that, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of any Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. The Borrowers expressly consent to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, consolidation, set‑off or counterclaim with respect to any and all monies owing by the Borrowers to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.15 shall not be construed to apply to (1) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (2) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Section 2.16. Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law, (i) Such Defaulting Lender’s right
to approve or disapprove any amendment, waiver or consent with respect to this Agreement or any other Loan Document shall be restricted as set forth in the definition of Required Lenders and in Section 10.05 hereof and (ii) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.04 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower Representative may request (so long as no Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower Representative, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, so long as no Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Loans were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the applicable Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.16 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b) Fees. No Lender shall be entitled to receive any Unused Fees for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(c) Defaulting Lender Cure. If the Borrower Representative and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the applicable Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Section 2.17. Replacement of Lenders. If any Lender or Letter of Credit Issuer (i) requests compensation under Section 2.09, Section 2.10 or Section 2.14 and (x) with respect to such requests under Section 2.14, shall not have promptly taken steps necessary to avoid the need for such payments and (y) with respect to such requests under Section 2.09, Section 2.10 or Section 2.14, such Lender or Letter of Credit Issuer has declined or is unable to designate a different lending office in accordance with Section 2.13(b), (ii) becomes a Defaulting Lender or (iii) does not provide its consent to an amendment, modification or waiver that requires the consent of each Lender or Letter of Credit Issuer or each affected
Lender or Letter of Credit Issuer, as applicable, and such amendment, modification or waiver receives the consent of the Required Lenders, then, if there is no Event of Default, the Borrowers may, at their sole expense and effort, upon notice to such Lender or Letter of Credit Issuer and the Administrative Agent, require such Lender or Letter of Credit Issuer to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.05 hereof), all of its interests, rights and obligations under this Agreement and the related Loan Documents or Letters of Credit to an Assignee who agrees to assume such obligations; provided that:
(a) such Lender or Letter of Credit Issuer shall have received payment of an amount equal to the outstanding principal of its Loans or Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts);
(b) in the case of any such assignment in accordance with clause (i) above, such assignment will result in a reduction in such compensation or payments thereafter;
(c) in the case of any such assignment in accordance with clause (iii) above, the assignee shall approve the proposed amendment, modification, waiver, termination or consent; and
(d) a Lender or Letter of Credit Issuer shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or Letter of Credit Issuer or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
Section 2.18. Stated Maturity Date.
(a) The Borrowers may request to extend, at their option, the Stated Maturity Date then in effect for one additional one-year term, subject to the consent of the Administrative Agent in its reasonable discretion. The extension shall be subject to satisfaction of the following conditions precedent:
(i) the Borrower Representative shall have delivered an Extension Request with respect to the then effective Stated Maturity Date to the Administrative Agent not less than thirty (30) days (or such shorter period as agreed to by the Administrative Agent) prior to the then effective Stated Maturity Date (which shall be promptly forwarded by the Administrative Agent to the Lenders);
(ii) the representations and warranties of the Borrowers contained in Article 4 and in any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such extension to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iii) the Borrowers shall have paid an extension fee to Administrative Agent, for the account of each applicable extending Lender, in an amount set forth in the Fee Letter, payable to each such Lender ratably based on its share of the applicable Commitments subject to extension;
(iv) no Default or Event of Default shall have occurred and be continuing on the date on which notice is given or on the Stated Maturity Date then being extended;
(v) either no Review Event has occurred and is continuing or if a Review Event has occurred and is continuing, a Review Event Cure Plan has been agreed with respect thereto and the Borrowers are in compliance with such agreed Review Event Cure Plan;
(vi) no Excess Prepayment Event has occurred and is continuing (it being understood that such Excess Prepayment Event shall cease only upon payment in full of any Excess Prepayment Amount); and
(vii) on or prior to the then current Stated Maturity Date, each extending Lender or Lenders shall have agreed to extend the Stated Maturity Date for such additional term, each in its sole discretion.
To the extent any Lender does not consent to extend its Commitment under this Section 2.18(a), the Obligations outstanding to such Lender as of the then effective Stated Maturity Date shall be due and payable to such Lender on such date; provided that, if any other Lender agrees to extend its Commitment with respect to all or any portion of any non-extending Lender’s Commitment, such non-extending Lender may, at the discretion of the Administrative Agent and the Borrowers, be required to assign on the Stated Maturity Date all or such applicable portion of its Commitment to one or more extending Lenders (or new Lenders) who have consented to increase their Commitments and have agreed to such extended Stated Maturity Date. Upon the payment of amounts due under the prior sentence to the non-extending Lender (and, if requested by the Administrative Agent and the Borrower Representative, such aforementioned assignment), such non-extending Lender shall cease to be a Lender hereunder. For the avoidance of doubt, no opinions shall be required in connection with an extension pursuant to this Section 2.18.
Section 2.19. Additional Borrowers. The Borrowers may elect, at their option, to join any Eligible Borrower as an “Additional Borrower” hereunder by delivery of (a) a Borrower Joinder Agreement, (b) such corporate or other action, incumbency of officers, and other documents as is substantially consistent with those delivered by the Borrowers pursuant to Section 3.01(b), (e) and (g) on the Closing Date and reasonably acceptable to the Administrative Agent and (c) an opinion of counsel to such Additional Borrower reasonably acceptable to the Administrative Agent; provided that, no such opinion shall be required to the extent that (i) an opinion acceptable to the Administrative Agent with respect to a Borrower has been delivered for such Borrower or another Borrower formed in the same jurisdiction, (ii) no change in law has occurred with respect to such jurisdiction that would alter the analysis of such prior opinion and (iii) if applicable, the Constitutional Documents of such Borrower is substantially similar to the Constitutional Documents of such other Borrower, in each case for clauses (ii) and (iii) above, as determined by the Administrative Agent, in its reasonable discretion.
ARTICLE 3
Conditions to Loans and Letters of Credit
Section 3.01. Closing Date Conditions. The obligation of each Lender and Letter of Credit Issuer to enter into this Agreement on the Closing Date shall be subject to satisfaction or waiver in accordance with Section 10.05 of the following conditions on or before the Closing Date:
(a) Loan Documents. The Administrative Agent shall have received executed counterparts of each Loan Document, duly executed and delivered by each Borrower, Guarantor and each other person party thereto.
(b) Constitutional Documents; Incumbency. The Administrative Agent shall have received, in respect of each Borrower and Guarantor and, where specified, K-INFRA, (i) copies of each
Constitutional Document (including of K-INFRA) and, in the case of any Borrower or Guarantor that is a Cayman Islands exempted company or limited liability company, copies of its corporate registers, each such document certified as of the Closing Date or a recent date prior thereto by a Responsible Officer of such Borrower or Guarantor; (ii) signature and incumbency certificates of the Responsible Officers of such Borrower or Guarantor; (iii) resolutions of the authorizing body of such Borrower or Guarantor approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which such Borrower or Guarantor is a party or by which it or its assets may be bound as of the Closing Date and evidencing the identity, authority and capacity of such Responsible Officers executing the incumbency certificate in clause (ii) above to act as a Responsible Officer on behalf of such Borrower or Guarantor, certified as of the Closing Date by a Responsible Officer of such Borrower or Guarantor as being in full force and effect without modification or amendment; (iv) if applicable, a good standing certificate (or equivalent) from the applicable Governmental Authority of each such Borrower’s or Guarantor’s and K-INFRA’s jurisdiction of incorporation, organization or formation, each dated on the Closing Date or a recent date prior thereto; and (v) a copy of the Valuation Policy of K-INFRA and the Borrowers and (vi) in respect of the Liquidity Guarantor: (1) a certified copy of its beneficial ownership register (within the meaning of the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019) and evidence that such Guarantor has filed the required information with the Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies; (2) evidence that such Guarantor has done all that is necessary to comply with section 82 and section 239 of the Irish Companies Act in order to enable that Guarantor to enter into the Guarantee Agreement (to which it is a party) and to perform its obligations thereunder; evidence that such Guarantor is in compliance with Section 137 of the Companies Act 2014 of Ireland; and (3) confirmation that on the date it entered into any Security Document which is governed by Irish law it was not a relevant external company, as that term is defined in Section 1301 of the Companies Act 2014 of Ireland.
(c) Governmental Authorizations and Consents. If applicable, the Borrowers and the Guarantors shall have obtained all Governmental Authorizations and all consents of other persons, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect. If applicable, all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
(d) Security Documents. The Administrative Agent shall have received executed counterparts of each Security Document, duly executed and delivered by each Borrower or Guarantor party thereto and each other person party thereto;
(e) Collateral Matters.
(i) The Administrative Agent shall have received evidence reasonably acceptable to the Administrative Agent of the establishment of each of the Collateral Accounts, each of which shall be subject to a duly executed Account Control Agreement.
(ii) Solely to the extent requested by the Collateral Agent in connection with the creation in favor of the Collateral Agent, for the benefit of Finance Parties, of a valid, perfected security interest in the personal property Collateral, (i) each Borrower shall have delivered to the Collateral Agent UCC financing statements (or their equivalent) satisfactory to the Collateral Agent with respect to the Collateral together with written evidence satisfactory to the Collateral Agent that the same are ready for filing in the appropriate public filing office(s), in the Collateral
Agent’s reasonable discretion, to perfect the Finance Parties’ first priority security interest in the Collateral (subject to Permitted Liens) and (ii) the Liquidity Guarantor shall have provided written authorization authorizing each legal adviser appointed by the Collateral Agent to sign on behalf of the Liquidity Guarantor all required security related registration forms required to be delivered to the Companies Registration Office of Ireland in connection with all or any of the Security Documents.
(f) Opinions of Counsel. The Agents and Lenders and their respective counsel shall have received executed copies of:
(i) a favorable opinion dated as of the Closing Date of Simpson Thacher & Bartlett LLP, counsel to the Borrowers and the Guarantors, customary for a transaction of this type and otherwise substantially in a form reasonably acceptable to the Administrative Agent;
(ii) a favorable opinion dated as of the Closing Date of Maples and Calder (Cayman) LLP, Cayman Islands counsel to the Borrowers formed or incorporated in the Cayman Islands, customary for a transaction of this type and otherwise substantially in a form reasonably acceptable to the Administrative Agent; and
(iii) a favorable opinion dated as of the Closing Date of Arthur Cox LLP, special Irish counsel to the Liquidity Guarantor, customary for a transaction of this type and otherwise substantially in a form reasonably acceptable to the Administrative Agent.
(g) PATRIOT Act; “Know Your Customer” Information and Documents. (i) Prior to the Closing Date, a Beneficial Ownership Certification in relation to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and (ii) at least three (3) days prior to the Closing Date or such shorter period of time as agreed by the Administrative Agent in writing, the Lenders and the Agents shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(h) Representations and Warranties. All of the representations and warranties of the Borrowers contained in Article 4 and in any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the Closing Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date.
(i) No Defaults. As of the Closing Date, no event shall have occurred and be continuing or would result from the making of the applicable Loans that would constitute an Event of Default or Default.
(j) Closing Certificate. The Administrative Agent’s receipt of a certificate from a Responsible Officer of each Borrower covering the matters specified in Section 3.01(h) and (i), in form reasonably satisfactory to the Administrative Agent.
(k) Fees, Costs and Expenses. The Borrowers shall have paid to the Administrative Agent and the Lenders the upfront fees payable pursuant to the Fee Letter executed on or prior to the Closing Date together with any fees and other amounts due and payable on or before the Closing Date (including all expenses payable pursuant to Section 10.02), including the reasonable fees and disbursements of Davis
Polk & Wardwell LLP, as New York counsel to the Administrative Agent and the to the extent such invoices are received not less than two (2) Business Days prior to the Closing Date.
(l) Notes. The Notes, duly executed and delivered by each Borrower to each requesting Lender.
Section 3.02. Conditions to Borrowing. The obligation of each Lender to make any Loan or any Letter of Credit Issuer to extend any Letter of Credit, as applicable, on any Funding Date, including the Closing Date, requested pursuant to the applicable Loan Notice or Request for Letter of Credit, as applicable, is subject to the satisfaction, or waiver in accordance with Section 10.05 of the following conditions precedent:
(a) Loan Notice. The Administrative Agent shall have received a Loan Notice or Request for Letter of Credit, as applicable, duly executed and delivered by the Borrower Representative in accordance with Section 2.01(b) or Section 2.03(b), as applicable.
(b) Percival Security Condition. No later than the date that is thirty (30) days following the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion) (the “Percival Security Condition Deadline”), K-INFRA Percival Aggregator GP LLC shall have delivered to the Administrative Agent (i) evidence reasonably acceptable to the Administrative Agent of the establishment of an account of K-INFRA Percival Aggregator GP LLC, (ii) a duly executed Security Amendment (as defined in the Security Agreement) thereby joining K-INFRA Percival Aggregator GP LLC to the Security Agreement as a “Grantor” thereunder, (iii) a duly executed Account Control Agreement (or joinder thereto) executed by K-INFRA Percival Aggregator GP LLC, the Collateral Agent and the financial institution maintaining such Collateral Account and (iv) favorable opinions of Simpson Thacher & Bartlett LLP and Maples and Calder (Cayman) LLP, counsel to K-INFRA Percival Aggregator GP LLC substantially in a form reasonably acceptable to the Administrative Agent; provided that, this clause (b) shall not be a condition to Borrowing prior to the Percival Security Condition Deadline (the condition to Borrowing set forth in this clause (b), the “Percival Security Condition”).
(c) Account Condition. Solely following the Account Condition Deadline, the Account Condition shall have been satisfied in accordance with Section 5.01(e).
(d) Representations and Warranties. All of the representations and warranties of the Borrowers contained in Article 4 and in any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of that Funding Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date.
(e) No Defaults. As of such Funding Date, no event shall have occurred and be continuing or would result from the making of the applicable Loans that would constitute an Event of Default or Default.
(f) Financial Covenants. The Borrowers are in compliance with each of the Financial Covenants as of such Funding Date, and after giving pro forma effect to such Borrowing or issuance of Letter of Credit, as applicable.
(g) Review Event. Either no Review Event has occurred or if a Review Event has occurred, a Review Event Cure Plan has been agreed with respect thereto and the Borrowers are in compliance with such agreed Review Event Cure Plan.
(h) Mandatory Prepayment. No Excess Prepayment Event has occurred and is continuing (it being understood that such Excess Prepayment Event shall cease only upon payment in full of any Excess Prepayment Amount).
(i) No Excess Outstanding. Immediately prior to, and after giving effect to such Borrowing or issuance of Letter of Credit, as applicable, (A) the Dollar Equivalent of the Principal Obligations as of such date will not exceed the Maximum Commitment as of such date; and (B) the Letter of Credit Liability as of such date will not exceed the Letter of Credit Sublimit on such date.
(j) Application. In the case of a Letter of Credit, the Letter of Credit Issuer shall have received an Application for Letter of Credit executed by the applicable Borrower.
(k) Limitations on Letters of Credit. With respect to a request for issuance of Letters of Credit, (A) not more than twenty (20) issued but undrawn Letters of Credit are then outstanding, and (B) such Letter of Credit will be in an amount equal to or in excess of $1,000,000 or the Dollar Equivalent thereof (or such other amount as agreed by the Letter of Credit Issuer).
(l) Each Loan Notice shall be deemed to constitute a representation and warranty by the applicable Borrower providing such Loan Notice of the accuracy of each of the conditions specified in clauses 3.02(d) through (i).
ARTICLE 4
Representations and Warranties
In order to induce the Lenders to make the Loans and cause the issuance of Letters of Credit to be made hereunder, each Borrower represents and warrants to each Agent and Lender, as of the Closing Date and on each other Funding Date:
Section 4.01. Organization and Good Standing. Each of the Borrowers and K-INFRA is duly formed, incorporated, validly existing and, except where such failure would not result in a Material Adverse Effect, in good standing (to the extent applicable) under the laws of its jurisdiction of formation or incorporation, each has the requisite power and authority to own its properties and assets and to carry on its business as now conducted, and each of the Borrowers and K-INFRA, except where such failure would not result in a Material Adverse Effect, is qualified to do business in every jurisdiction where the nature of the business conducted or the property owned or leased requires such qualification.
Section 4.02. Authorization and Power. Each Borrower has the requisite power and authority to execute, deliver and perform its obligations under this Agreement, the Notes, any applicable Constitutional Documents and each of the other Loan Documents to be executed by it, as the case may be; each Borrower is duly authorized to, and has taken all action necessary to authorize it to, execute, deliver and perform its obligations under this Agreement, the Notes, the applicable Constitutional Documents, and each of the other Loan Documents to which it is a party.
Section 4.03. No Conflicts or Consents. None of the execution and delivery of this Agreement or the other Loan Documents to which it is a party, the consummation of any of the transactions herein or therein contemplated, or the compliance with the terms and provisions hereof or with the terms and provisions thereof, will contravene or conflict, in any material respect, with any Applicable Laws to
which any Borrower is subject or any material judgment, license, order or permit applicable to such Borrower or any other material agreement or instrument (including such Borrower’s Constitutional Documents) to which such Borrower is a party or by which such Borrower may be bound, or to which such Borrower may be subject. No material consent, approval, authorization or order of any court or Governmental Authority or third party is required in connection with the execution and delivery by any Borrower of the Loan Documents to which it is a party or to consummate the transactions contemplated hereby or thereby, except (a) the consents, approvals, authorizations, filings and notices that have been obtained or made and are in full force and effect and (b) the filings and regulations referred to in Section 3.01(e) hereof.
Section 4.04. Enforceable Obligations. This Agreement, the Notes and the other Loan Documents to which each Borrower is a party are the legal and binding obligations of such Borrower, enforceable against it in accordance with their respective terms, subject to Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law).
Section 4.05. Priority of Liens. The Security Documents to which it is a party create, as security for the Obligations of such Borrower, valid and enforceable security interests in and Liens on all of the Collateral in which the applicable Borrower has any right, title or interest, in favor of the Administrative Agent, for the benefit of the Finance Parties. Such security interests in and Liens on the Collateral in which the applicable Borrower has any right, title or interest shall (subject to Permitted Liens) be superior to and prior to the rights of all third parties in such Collateral, and, other than in connection with any future change in Applicable Law or in the applicable Borrower’s name, identity or structure, or its jurisdiction of organization, as the case may be, no further recordings or filings are or will be required in connection with the creation, perfection or enforcement of such security interests and Liens, other than the filing of continuation statements, financing change statements, update to the applicable register of mortgages and charges or their equivalent in accordance with Applicable Law. Each Lien referred to in this Section 4.05 is and shall be the sole and exclusive Lien (other than Permitted Liens) on the Collateral in which the applicable Borrower has any right, title or interest.
Section 4.06. Reports and Financial Statements.
(a) The most recent Compliance Certificate, delivered to the Administrative Agent (if any) is accurate and not misleading in any material respect as of the date of such Compliance Certificate.
(b) The financial statements (if any) delivered to the Administrative Agent pursuant to Section 6.01(a) and Section 6.01(b) fairly present in all material respects the financial position of the relevant entity in respect of the period to which they relate thereof and have been prepared in accordance with the Accounting Principles consistently (except as disclosed therein) applied (other than, in the case of unaudited financial statements, the omission of footnote disclosures and subject to normal year-end adjustments).
Section 4.07. Full Disclosure.
(a) There is no fact and there are no changes to any Borrower, K-INFRA or Holding Vehicle that any Borrower has not disclosed to the Administrative Agent in writing which could reasonably be expected to have a Material Adverse Effect. No information heretofore furnished by such Borrower, in connection with this Agreement, the other Loan Documents or any transaction contemplated hereby (or, to the extent such information was provided to a Borrower by a third party, to the knowledge of such Borrower) contains any untrue statement of material fact that could reasonably be expected to result in a Material Adverse Effect.
(b) As of the Closing Date, to the best of the applicable Responsible Officer’s knowledge, the information provided in the Beneficial Ownership Certification of such Borrower (if any) is complete and correct.
Section 4.08. No Default. No event has occurred and is continuing which constitutes an Event of Default or a Default.
Section 4.09. No Litigation. (i) For purposes of this representation and warranty as of the Closing Date, there are no material actions, suits, investigations or legal, equitable, arbitration or administrative proceedings in any court or before any arbitrator or Governmental Authority (“Proceedings”) pending, or to the knowledge of such Borrower threatened, against any of the Borrowers and K-INFRA, other than any such Proceeding that is disclosed in writing by such Borrower to the Administrative Agent before the Closing Date; and (ii) for purposes of this representation and warranty as of the date of the advance of any Borrowing or the issuance of any Letter of Credit, there are no such Proceedings pending, or to the knowledge of such Borrowers and K-INFRA threatened, against such Borrowers and K-INFRA, other than any such Proceeding that would not have a Material Adverse Effect.
Section 4.10. Principal Office; Jurisdiction of Formation. As of the Closing Date, (a) each of the principal office, chief executive office, registered office, and principal place of business of each Borrower is correctly listed on Schedule 4.10 hereto, and such Borrower has maintained such principal office, chief executive office and principal place of business at such location since its formation; and (b) the jurisdiction of formation of each Borrower is listed on Schedule I hereto.
Section 4.11. Compliance with Law. Each Borrower and K-INFRA is in compliance with all Applicable Laws, rules, regulations, orders, and decrees which are applicable to it or its properties, except where non-compliance would not be reasonably likely to have a Material Adverse Effect.
Section 4.12. Fiscal Year. The fiscal year of each of the Borrowers and K-INFRA is the calendar year.
Section 4.13. Margin Stock. Neither the execution and delivery by the Borrowers of the Loan Documents nor the consummation of the transactions contemplated therein, nor performance of and compliance with the terms and provisions thereof by the Borrowers will or will cause any Lender to violate Regulation T, U or X or any other regulation of the Board of Governors of the Federal Reserve System applicable to Margin Stock or to violate Section 7 of the Securities Exchange Act, in each case as now in effect or as the same may hereafter be in effect.
Section 4.14. Investment Company Act. No Borrower is required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 4.15. Ownership of Assets. As of the Closing Date and as of the date of each requested Borrowing hereunder, each Eligible Asset is beneficially owned by a Borrower (directly or indirectly through a Holding Vehicle). Such Borrower, to its knowledge, has good and marketable title to the Assets which it owns (directly or indirectly through a Holding Vehicle), except for any Liens not prohibited hereunder. No Holding Vehicle owns any property other than Equity Interests in other Holding Vehicles, an Asset Topco or Assets, as applicable.
Section 4.16. [Reserved].
Section 4.17. Payment of Taxes. Except as otherwise permitted hereunder, to the extent that failure to do so would have or would reasonably be expected to have a Material Adverse Effect, all Tax
returns and reports covering the Borrowers and K-INFRA and the Borrowers’ Holding Vehicles required to be filed have been timely filed, and all Taxes that are due and payable and all assessments, fees and other governmental charges upon the Borrowers and K-INFRA and the Borrowers’ Holding Vehicles and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable. There is no proposed Tax assessment against any of the Borrowers and K-INFRA and the Borrowers’ Holding Vehicles that is not being actively contested by such Borrowers, K-INFRA or the Borrowers’ Holding Vehicles, as applicable, in good faith and by appropriate proceedings and for which adequate reserves are being maintained in accordance with the Accounting Principles, except assessments that would not have or would not reasonably be expected to have a Material Adverse Effect.
Section 4.18. Sanctions; Anti-Corruption; PATRIOT Act. Neither K-INFRA, the Borrowers nor their Subsidiaries or Holding Vehicles or any of their respective directors or officers or, to the knowledge of any Borrower, any of their respective employees or agents acting on behalf of such Borrower is the subject of any sanctions or economic embargoes administered or enforced by the U.S. Department of State or the U.S. Department of Treasury (including the Office of Foreign Assets Control) or any other applicable sanctions authority (including the United Nations Security Council, the European Union, the government of Japan or His Majesty’s Treasury) (collectively, “Sanctions”). Each of Borrower, K-INFRA and their Subsidiaries and the Holding Vehicles and, to the knowledge of each Borrower, their respective directors, officers, employees and agents acting on behalf of such Borrower, K-INFRA and its Subsidiaries and the Holding Vehicles is in compliance, in all material respects, with (a) all Sanctions, (b) the United States Foreign Corrupt Practices Act of 1977 and any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “Anti-Corruption Laws”) and (c) the PATRIOT Act and any other applicable terrorism and anti-money laundering laws, rules, regulations and orders. Each of Borrower, K-INFRA and their Subsidiaries and the Holding Vehicles has instituted and maintained, or has been subject to, policies and procedures reasonably designed to achieve compliance with such laws. No Borrowing, use of proceeds or other transaction contemplated by this Agreement will violate applicable Sanctions, any Anti-Corruption Law or the PATRIOT Act or any other applicable terrorism or anti-money laundering laws, rules, regulations and orders.
Section 4.19. Employee Benefit Plans. The Borrowers do not maintain or contribute, or have any obligation or liability (contingent or otherwise) to contribute, to a Pension Plan or a Multiemployer Plan, including in respect of an ERISA Affiliate, in each case except as would not reasonably be expected to have a Material Adverse Effect, and no ERISA Event has occurred that would reasonably be expected to have a Material Adverse Effect. The assets of the Borrowers are not treated as “plan assets” of any “benefit plan investor” for purposes of Section 3(42) of ERISA or Section 4975 of the Code which would give rise to a “non‑exempt prohibited transaction” under Section 4975(c)(B) of the Code or Section 406(a)(1)(B) of ERISA and would subject Administrative Agent or the Lenders to any tax or penalty under Section 4975 of the Code or Section 502(i) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state laws and each Borrower and ERISA Affiliate is in material compliance with ERISA, the Internal Revenue Code and other United States federal or United States state laws with respect to each Multiemployer Plan.
ARTICLE 5
Collateral Accounts
Section 5.01. Accounts; Use of Accounts.
(a) The Borrowers shall deposit or cause to be deposited the Asset Proceeds and any other Collateral into the Borrower Collateral Accounts. Each Borrower shall cause any direct or indirect
Holding Vehicle or Subsidiary thereof to distribute any Asset Proceeds attributable to such Borrower (or, with respect to any holding vehicle that is not Controlled by a Borrower, no Borrower shall take any action to prevent, impede or impair such proceeds from being distributed) promptly (and during any Event of Default, within five (5) Business Days) for deposit into the Borrower Collateral Accounts; provided that any such Subsidiary, Holding Vehicle or other vehicle shall not be required to distribute (i) any amounts it is reasonably required to retain to be utilized to pay for out of pocket expenses related to the ordinary course business operations of such entity, (ii) amounts necessary to pay any investment obligations relating to any Assets, or (iii) any amount that any Borrower (or a relevant Subsidiary, Holding Vehicle or other vehicle) has determined, in its commercially reasonable business judgment, that if paid, would reasonably be expected (x) to result in such entity becoming insolvent or bankrupt under any applicable Debtor Relief Law, (y) to violate Applicable Law or (z) to conflict with the applicable fiduciary duties.
(b) The Borrowers may withdraw funds from their Borrower Collateral Accounts (or in the case of a securities account, other assets contained therein) only in compliance with Section 7.08 hereof. During the existence of the conditions specified in Section 7.08 hereof, no Borrower shall have any right to withdraw funds from any Borrower Collateral Account.
(c) The Borrowers shall not open any deposit or securities account without the prior written consent of the Administrative Agent. Following the Account Condition Deadline, for each account that any Borrower now or at any time hereafter opens or maintains, such Borrower shall ensure that such account is at all times subject to an Account Control Agreement.
(d) In connection with any replacement of a Borrower Collateral Account, the Administrative Agent is hereby authorized to release the Liens on such replaced account upon the execution of Security Documents relating to such replacement account and transfer of all amounts on deposits and assets to such replacement account.
(e) No later than the date that is thirty (30) days following the Closing Date (or such later date as the Administrative Agent may agree in its reasonable discretion) (the “Account Condition Deadline”), each Borrower and the Liquidity Guarantor shall have provided evidence reasonably acceptable to the Administrative Agent (which may be a certificate, signed by a responsible officer of the Borrowers), that the Borrowers and the Liquidity Guarantor do not have any open deposit accounts or securities accounts other than the Borrower Collateral Accounts and the Liquidity Guarantor Collateral Account (the “Account Condition”), in each case subject to an Account Control Agreement. For the avoidance of doubt, an Account Condition Failure shall result in a mandatory prepayment and drawstop to Borrowings pursuant to Section 2.07(b)(iv) and Section 3.02(c).
Section 5.02. Further Assurances; Agreement to Deliver Additional Security Documents. The Borrowers shall promptly upon reasonable request of the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent or the Collateral Agent: (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent or the Collateral Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by Applicable Law, subject the applicable Borrower’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the
Administrative Agent, the Collateral Agent and Lenders the rights granted or now or hereafter intended to be granted to the Administrative Agent, the Collateral Agent and Lenders under any Loan Document or under any other instrument executed in connection with any Loan Document to which such Borrower is or is to be a party.
ARTICLE 6
Affirmative Covenants
So long as the Lenders have any commitment to lend hereunder or to cause the issuance of any Letter of Credit hereunder, and until payment and performance in full of the Obligations (other than Letter of Credit obligations which have been fully cash collateralized and contingent obligations for which no claim has been made) under this Agreement and the other Loan Documents, each Borrower agrees, without the prior written consent of the Administrative Agent on behalf of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of Lenders is expressly required below).
Section 6.01. Reports and Financial Statements. The Borrowers shall deliver, or shall cause to be delivered, as applicable, to the Administrative Agent each of the following:
(a) within ninety (90) days after the end of each fiscal year of K-INFRA (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one-hundred twenty (120) days after the end of each fiscal year of K-INFRA), commencing with the fiscal year ending December 31, 2024, the audited financial statements of K-INFRA as of the end of and for such year, all reported on by Deloitte & Touche LLP or any other independent public accountants of recognized national standing to the effect that such financial statements present fairly in all material respects the financial condition and results of operations of K-INFRA in accordance with the Accounting Principles consistently (except as disclosed therein) applied;
(b) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of K-INFRA (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of K‑INFRA), the unaudited financial statements of K-INFRA as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, all certified by a Responsible Officer of K-INFRA as presenting fairly in all material respects the financial condition and results of operations of K-INFRA in accordance with the Accounting Principles consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments, the absence of footnotes and as otherwise described therein;
(c) promptly after (and only if) the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by K-INFRA with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, as the case may be;
(d) concurrently with any delivery of financial statements under clause (a) or (b) of this Section 6.01 and at any time that the Asset Coverage Ratio declines below the Maintenance Asset Coverage Ratio or the Minimum Asset Coverage Ratio, a certificate of a Responsible Officer of the Borrower Representative as of the date of such financial statements (i) certifying as to whether any Borrower has knowledge that a Default or Event of Default has occurred and is continuing, specifying the details thereof and any action which such Borrower has taken or proposed to be taken with respect thereto as of the date of such financial statements, (ii) stating whether the Borrowers are in compliance with each
of the Financial Covenants and setting forth reasonably detailed calculations of the Financial Covenants as of the date of such financial statements (including the Adjusted Value), (iii) setting forth the K-INFRA Net Asset Value, (iv) stating that, to the knowledge of the applicable Responsible Officer, no Material Asset Event has occurred and is continuing with respect to any Eligible Asset or, if one has occurred, the nature of such Material Asset Event, (v) setting forth a complete listing of all Assets set forth in such financial statements directly or indirectly owned by the Borrowers on such date and the Value thereof in a manner consistent with those set forth in such financial statements, and identifying each such Asset as either an Eligible Asset or an Excluded Asset; and (vi) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed with the SEC, stating whether any change in the Accounting Principles as applied by (or in the application of GAAP by) K-INFRA has occurred since the Closing Date (but only if such Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by such Borrower of such change on the financial statements accompanying such certificate (the “Compliance Certificate”); and
(e) to the extent the aggregate assets of the PassCo Guarantors exceed an amount equal to 20% of the K-INFRA Net Asset Value, within seventy-five (75) days of the acquisition of such interests in excess of such threshold, the Borrowers and the Administrative Agent shall mutually agree in good faith to (i) adjust one or more of the terms or provisions of this Agreement as the parties reasonably determine shall be necessary in order to provide the Administrative Agent with an accurate reporting in all material respects of the financial position of Borrowers and (ii) determine the effective time of such adjustment, in each case, to preserve the original intent of the parties at the Closing Date in connection with entry into this Agreement.
Notwithstanding anything in this Section 6.01 to the contrary, the Borrowers shall be deemed to have satisfied the requirements of this Section 6.01 (other than Section 6.01(d)) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on EDGAR at the www.sec.gov website or any successor service provided by the SEC.
Section 6.02. Information: miscellaneous. The Borrowers shall deliver to the Administrative Agent:
(a) promptly (and in no event later than the second Business Day after knowledge thereof at all times when any Principal Obligations are outstanding, and within five (5) Business Days after knowledge thereof, at all times when no Principal Obligations are outstanding), notice of the occurrence of any Default or Event of Default (and the steps, if any, being taken to remedy it).
(b) as soon as is reasonably practicable after becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against K-INFRA, the Borrowers or the Guarantors which if adversely determined, would have or would be reasonably expected to have a Material Adverse Effect;
(c) as soon as is reasonably practicable following a request, such further relevant information that the Administrative Agent reasonably requests regarding the financial condition, business and operations of K-INFRA, the Borrowers, the Guarantors, the Holding Vehicles or any Asset;
(d) as promptly as practicable following becoming aware of the same, notification of any amendment made to the Constitutional Documents of any Borrower or Guarantor, which is material to the interests of the Finance Parties under the Loan Documents;
(e) as promptly as practicable following becoming aware of the same, any material change to the Valuation Policy or the Constitutional Documents of K-INFRA, solely to the extent not otherwise made available in accordance with Section 6.01(c);
(f) as promptly as practicable following becoming aware of them, any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification and such updated information required therein and if requested by the Administrative Agent, a new Beneficial Ownership Certification;
(g) as promptly as practicable following becoming aware of the same, notice that a Review Event has occurred;
(h) as promptly as practicable, but not later than two (2) Business Days, after knowledge of any Material Asset Event, notice of such Material Asset Event with respect to any Eligible Asset;
(i) if requested by any Lender (through the Administrative Agent), the Borrower Representative shall request the applicable third party valuation provider of the Borrowers to make available to such Lender a copy of the most recently issued quarterly portfolio valuation positive assurance report relating to the Assets of the Borrowers (it being understood that such access may be conditioned upon such Lender’s execution of a third party access letter in favor of the applicable third party valuation provider); and
(j) as soon as practicable after the delivery to the investors of K-INFRA, investor reports relating to the performance of K-INFRA.
Section 6.03. Restrictions.
(a) Notwithstanding any other provision of the Loan Documents, all reporting and other information requirements in the Loan Documents shall be subject to any confidentiality, regulatory or other restrictions relating to the supply of information concerning or otherwise binding on any of the Manager, K-INFRA and any direct or indirect Subsidiary thereof, any Asset or any of their respective Affiliates.
(b) The Borrowers shall not enter into any restrictions of a type referred to in paragraph (a) above with the primary intention of circumventing the reporting and other information requirements to which it is subject under the Loan Documents.
Section 6.04. Taxation. The Borrowers and K-INFRA and the Borrowers’ Holding Vehicles shall timely file or cause to be filed all U.S. federal income tax returns (if applicable) and all other material Tax returns and reports required to be filed by the Borrowers and K-INFRA or such Holding Vehicle, and duly and timely pay and discharge all material Taxes imposed upon the Borrowers and K-INFRA or such Holding Vehicle or the Borrowers’ and K-INFRA’s or such Holding Vehicle’s assets within the time period allowed without incurring material penalties (except to the extent that (a)(i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) adequate reserves in accordance with the Accounting Principles are being maintained for those Taxes or (b) the failure to make payment pending such contest would not reasonably be expected to have a Material Adverse Effect).
Section 6.05. Maintenance of Existence and Rights. Subject to the provisions of the Loan Documents, each of the Borrowers and K-INFRA shall preserve and maintain its existence. Each of the Borrowers and K-INFRA shall further preserve and maintain all of its rights, privileges, and franchises
necessary in the normal conduct of its business and in accordance with all valid regulations and orders of any Governmental Authority, the failure of which would reasonably be expected to result in a Material Adverse Effect.
Section 6.06. Compliance with Loan Documents. Unless otherwise approved in accordance with the terms of this Agreement (which approval, by such terms, may require more or fewer Lenders than the Required Lenders), each of the Borrowers and K-INFRA shall promptly comply with any and all covenants and provisions of this Agreement applicable to it, the Notes, and all of the other Loan Documents executed by it.
Section 6.07. Operations and Properties. Each of the Borrowers and K-INFRA shall act in accordance with its Constitutional Documents in managing or operating its assets, properties, business, and investments so as not to have a Material Adverse Effect.
Section 6.08. Books and Records; Access. Following five (5) Business Days prior written notice, the Borrowers and K-INFRA shall give any representative of the Administrative Agent or the Lenders, or any of them, access during ordinary business hours to, and permit such representative to examine, copy, or make excerpts from, any and all books, records, and documents in the possession of the Borrowers and K-INFRA and relating to their affairs; provided that, so long as no Event of Default exists, any such inspection, which shall be at the Borrowers’ expense, shall be conducted no more than once in any twelve (12) month period, provided further, however, that if an Event of Default has occurred and is continuing, any such inspection may be conducted by representatives of the Administrative Agent and any Lender with reasonable prior notice and as many times as the Administrative Agent reasonably deems necessary.
Section 6.09. Compliance with Law. Each of the Borrowers and K-INFRA and their Subsidiaries and the Holding Vehicles shall comply in all material respects with all material laws, rules, regulations, and all orders of any Governmental Authority, except where the failure to comply would not reasonably be expected to result in a Material Adverse Effect. Each of the Borrowers and K-INFRA and their Subsidiaries and Holding Vehicles will maintain in effect and enforce, or remain subject to, policies and procedures designed to promote compliance by such Borrowers and K-INFRA, such Subsidiaries and Holding Vehicles and their respective directors, officers, employees and agents with Anti-Corruption Laws, applicable Sanctions and the PATRIOT Act and any other applicable terrorism and anti-money laundering laws, rules, regulations and orders.
Section 6.10. Insurance. Such Borrower shall maintain liability insurance, and insurance on its present and future properties, assets, and businesses except where the failure to maintain could not reasonably be expected to have a Material Adverse Effect.
Section 6.11. Authorizations and Approvals. Each of the Borrowers and K-INFRA shall promptly obtain, from time to time at its own expense, all such material governmental licenses, authorizations, consents, permits and approvals as may be required to enable such Borrowers to comply with their respective obligations hereunder, under the other Loan Documents to which it is a party and its Constitutional Documents.
Section 6.12. Maintenance of Liens. Such Borrower shall (a) perform, all such acts and execute all such documents as the Administrative Agent may reasonably request in order to enable the Finance Parties to file and record every instrument that the Administrative Agent may reasonably deem necessary in order to perfect and maintain the Administrative Agent’s first priority security interests (subject to any Permitted Liens) in and Liens on the Collateral and otherwise to preserve and protect the rights of the Finance Parties in respect of such security interests and Liens. The Borrowers shall not grant
or create (nor shall either suffer any other person to grant or create) any other Liens (other than Permitted Liens) on any Collateral, whether junior, equal, or superior in priority to the security interests and Liens created by the Loan Documents.
Section 6.13. Further Assurances. Such Borrower shall take such other actions, as the Administrative Agent may, from time to time, reasonably deem necessary or proper in connection with this Agreement or any of the other Loan Documents, the Obligations of such Borrower hereunder or thereunder for better assuring and confirming unto the Lenders all or any part of the security for any of such Obligations.
Section 6.14. Register of Mortgages and Charges. Any Borrower incorporated or formed in the Cayman Islands shall, immediately upon execution of the Security Documents, instruct its registered office to update its register of mortgages and charges to reflect the security granted by such Borrower pursuant to the terms of the Security Documents, in form and substance acceptable to the Agent.
Section 6.15. Additional Borrowers. In the event that, with respect to any present or future Asset, (a) K-INFRA shall form or acquire any new Subsidiary or Economic Holdco (other than a Designated Vehicle) that directly or indirectly holds such Asset, and such entity constitutes an “Eligible Borrower”, (b) any Designated Vehicle owned by K- INFRA that is an Eligible Borrower shall no longer constitute a “Designated Vehicle” pursuant to the asset value tests under either clause (a) or (b) of the definition thereof (in which such person shall be deemed to be a “new” Subsidiary or Economic Holdco for purposes of this Section 6.15 as of such date), or (c) a PassCo Guarantor becomes an “Eligible Borrower” in accordance with the definition thereof, (in which case such person shall be deemed to be a “new” Subsidiary or Economic Holdco for purposes of this Section 6.15 as of such date) and in each case, no Eligible Borrower is a Borrower hereunder in respect of the relevant Asset then, in each case, the Borrowers shall within sixty (60) days (or such longer period as shall be reasonably agreed or required by the Administrative Agent) following such person becoming an Eligible Borrower, cause such new Subsidiary or Economic Holdco to become an “Additional Borrower” hereunder pursuant to a Borrower Joinder Agreement and to deliver such corporate or other action, incumbency of officers, and other documents as is substantially consistent with those delivered by the Borrowers pursuant to Section 3.01(b), (e) and (g) upon the Closing Date and reasonably acceptable to the Administrative Agent, and an opinion of counsel for such Additional Borrower reasonably acceptable to the Administrative Agent; provided that, no such opinion shall be required to the extent that (i) an opinion acceptable to the Administrative Agent with respect to a Borrower has been delivered for such Borrower or another Borrower formed in the same jurisdiction, (ii) no change in law has occurred with respect to such jurisdiction that would alter the analysis of such prior opinion and (iii) if applicable, the Constitutional Documents of such Additional Borrower is substantially similar to the Constitutional Documents of such other Borrower, in each case for clauses (ii) and (iii) above, as determined by the Administrative Agent, in its reasonable discretion. Any breach of this covenant that is solely due to inaction or delay of the Administrative Agent (to the extent such Borrower has otherwise submitted all requested documents and information under this Section 6.15) shall not result in a Default or Event of Default hereunder.
Section 6.16. Release of Borrowers. The Borrowers may elect, at their option, to release any Borrower hereunder at any time, upon not less than seven (7) Business Days’ prior notice to the Administrative Agent if (a) (i) such Borrower constitutes a Designated Vehicle, (ii) in connection with a Disposition not prohibited under Section 7.07 pursuant to which 100% of Assets held by such Borrower is Disposed of (or following which, such Borrower shall constitute a Designated Vehicle) or (iii) the Borrowers shall have determined that such Borrower will cease to be an Eligible Borrower and shall have delivered to the Administrative Agent a certification, signed by a Responsible Officer of such Borrower, that such Borrower has (1) no outstanding Financial Indebtedness that (A) would be treated as acquisition indebtedness under Section 514 of the Code (either directly or through a pass through Subsidiary), (B) is
secured by (or for which the holder of such Financial Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, assets or property owned or acquired by such Borrower, whether or not the Financial Indebtedness secured thereby has been assumed or (C) exceeds $5,000,000 in the aggregate at any time and (2) will cease to be either treated as a corporation for U.S. federal income tax purposes or a direct or indirect Subsidiary of an entity that is treated as a corporation for federal income tax purposes, and immediately after giving effect thereto, (b) no Default under Section 8.01(a), (g) or (h) hereof has occurred and is continuing (unless, (1) to the extent any such entity is being released pursuant to clause (a)(ii), such release was made or committed to prior to the Borrowers’ knowledge of or the occurrence of such Default or (2) such release is otherwise acceptable to the Administrative Agent and the Required Lenders in their sole discretion), (c) to the extent any such entity is being released pursuant to clause (a)(i) or clause (a)(iii), the Asset Coverage Ratio is greater than the Minimum Asset Coverage Ratio; provided that, if the Asset Coverage Ratio is less than the Maintenance Asset Coverage Ratio and greater than the Minimum Asset Coverage Ratio, the Asset Coverage Ratio, after giving effect to such release is not less than the Asset Coverage Ratio immediately prior to giving effect to such release and any release of such Borrower shall be deemed a Disposition of all Assets held by such Borrower, and the Obligations shall be repaid in an amount equal to the Asset Proceeds that would have been received by Borrower had such Assets held by such Borrower been Disposed of in accordance with Section 7.07 up to an amount, following which, the Asset Coverage Ratio is greater than the Maintenance Asset Coverage Ratio, (d) any Allocated Loan Amount of such Borrower shall have been paid in full in accordance with the terms hereof and (e) to the extent any such entity is being released pursuant to clause (a)(iii), it shall have, substantially concurrently with such release, executed a joinder to the Guarantee Agreement pursuant to a Guarantee Assumption Agreement and shall have complied with Section 12 of the Guarantee Agreement; provided that, in no event shall a Designated Vehicle be required to be joined as a Guarantor hereunder and become a PassCo Guarantor thereunder; provided, however, that for any entity that had been a Borrower and was subsequently released because it ceased to be an Eligible Borrower under clause (a)(iii) of this Section 6.16, such entity shall become an Additional Borrower pursuant to Section 6.15 at the earlier of such time as either (i) such entity or any of its Subsidiaries that is treated as pass-through or disregarded for U.S. federal income tax purposes incurs any Financial Indebtedness that (A) would be treated as acquisition indebtedness under Section 514 of the Code (either directly or through a pass through Subsidiary), (B) is secured by (or for which the holder of such Financial Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, assets or property owned or acquired by such Borrower, whether or not the Financial Indebtedness secured thereby has been assumed or (C) exceeds $5,000,000 in the aggregate at any time or (ii) such entity or any of its direct or indirect parent entities becomes an entity that is treated as a corporation for U.S. federal income tax purposes.
Upon the satisfaction of the above conditions, the Administrative Agent shall promptly execute all documents and instruments reasonably necessary for such Borrower to cease to be a Borrower hereunder and to release any Liens granted by such Borrower over its assets.
ARTICLE 7
Negative Covenants
So long as the Lenders have any commitment to lend hereunder or to cause the issuance of any Letter of Credit hereunder, and until payment and performance in full of the Obligations (other than Letter of Credit obligations which have been fully cash collateralized and contingent indemnification obligations for which no claim has been made) under this Agreement and the other Loan Documents, each Borrower agrees, without the prior written consent of the Administrative Agent on behalf of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of Lenders is expressly permitted below):
Section 7.01. Merger; Dissolution; Division. Except as otherwise provided in the Loan Documents, such Borrower shall not take any actions (a) to merge, amalgamate or consolidate with or into any person, unless a Borrower is the surviving or continuing entity, (b) except as permitted by clause (a), that will dissolve or terminate such Borrower or (c) to Divide.
Section 7.02. Negative Pledge. (a) No Borrower shall directly or indirectly create or permit to subsist any Liens over any of the Collateral or any of the assets or property of such Borrower and (b) Borrower shall ensure that no Holding Vehicle shall directly or indirectly create or permit to subsist any Liens over any of the Collateral or any of the assets or property of such Holding Vehicle in each case, other than Permitted Liens.
Section 7.03. Financial Indebtedness. (a) No Borrower shall incur, assume, suffer to exist, allow to remain outstanding or otherwise become or remain liable with respect to any Financial Indebtedness, and (b) Borrowers shall ensure that no Holding Vehicle shall incur, assume, suffer to exist, allow to remain outstanding or otherwise become or remain liable with respect to any Financial Indebtedness, in each case, other than Permitted Financial Indebtedness.
Section 7.04. Distributions. No Borrower shall make, pay or declare any dividend, distribution or payment (whether or not in cash), direct or indirect, on account of any Equity Interest in such Borrower including as a dividend or other distribution and on account of the purchase, redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of any such Equity Interest (any such dividend, distribution, payment, purchase, redemption, retirement, sinking fund, purchase or other acquisition, a “Distribution”) at any time a Cash Control Event has occurred and is continuing.
Section 7.05. Sanctions. No Loan, nor any part of the proceeds of the Loans, will be used, directly or knowingly indirectly, or lent, contributed, provided or otherwise made available to, any person (i) for the purpose of financing any activities or business of or with any person or in any country or territory that at such time is the subject of any Sanctions (as of the Closing Date, the Crimea, Kherson and Zaporizhzhia regions of Ukraine, the so-called People’s Republic of Donetsk and the so-called People’s Republic of Luhansk, Cuba, North Korea, Iran and Syria) to the extent such activities or business would be prohibited by Sanctions, or in any other manner that will result in any violation by any person (including any Lender) of Sanctions or (ii) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Laws.
Section 7.06. [Reserved].
Section 7.07. Dispositions. No Borrower shall, nor shall it permit any Holding Vehicle (or, in the case of any other holding vehicle through which Borrower holds such Asset that Borrower does not Control, consent to, vote in favor of or otherwise agree to or accept) to transfer an Asset to any person unless such transaction is on fair and reasonable terms no less favorable to such Borrower, Holding Vehicle or such other entity than those terms that might be obtained at the time in a comparable arm’s length transaction (or otherwise in accordance with the PPM and the Constitutional Documents of such Borrower and K-INFRA).
Notwithstanding the foregoing, no Borrower shall, nor shall it permit any Holding Vehicle (or, in the case of any other holding vehicle through which Borrower holds such Asset that Borrower does not Control, vote, consent or otherwise agree) to, transfer or otherwise dispose of an Asset to any person: (i) while a Default under Section 8.01(a), (g) or (h) hereof has occurred and is continuing (unless (1) such transfer or disposition was made or committed to prior to the Borrowers’ knowledge of or the occurrence
of such Default or (2) such transfer or disposition is otherwise acceptable to the Administrative Agent and the Required Lenders in their sole discretion) or (ii) to the extent a breach of a Financial Covenant or an Excess Prepayment Event would result therefrom, unless, in the case of this sub-clause (ii) the Asset Proceeds of such disposition shall be applied to repay the Obligations of such Borrower in accordance with Section 2.07.
Section 7.08. Limitation on Withdrawals from the Borrower Collateral Accounts. Without the prior written consent of the Administrative Agent, no Borrower shall make or cause the making of any withdrawal or transfer of funds from its Borrower Collateral Account if a Cash Control Event has occurred and is continuing, unless such withdrawal shall be used to repay any amounts payable by the Borrowers under this Agreement.
Section 7.09. Transactions with Affiliates. No Borrower shall, directly or indirectly, enter into any transaction with any Affiliate unless such transaction is (a) with another Borrower or the Liquidity Guarantor or (b) such transaction is on fair and reasonable terms no less favorable to such Borrower than those terms that might be obtained at the time in a comparable arm’s length transaction with a person who is not an Affiliate; provided that, any transaction entered into in accordance with the PPM and the Constitutional Documents of such Borrower and K-INFRA shall be deemed to comply with this Section 7.09.
Section 7.10. Constitutional Document and Valuation Policy Amendments.
(a) No Borrower shall amend or otherwise modify its Constitutional Documents (a “Proposed Borrower Amendment”) in any way that would (i) impair the Lenders’ rights in the Collateral or (ii) reasonably be expected to have an adverse effect on the rights, powers, remedies and privileges of the Lenders in any material respect (each of clauses (i) and (ii), a “Material Borrower Amendment”), in each case without the consent of the Administrative Agent (acting at the direction of the Required Lenders).
With respect to any Proposed Borrower Amendment, the applicable Borrowers shall notify the Administrative Agent of such proposal. The Administrative Agent shall determine, in its sole reasonable discretion (i.e., the determination of the other Lenders shall not be required) and on its good faith belief, whether such Proposed Borrower Amendment would constitute a Material Borrower Amendment within three (3) Business Days of the date on which it is deemed to have received such notification in accordance with this Section 7.10 and shall promptly notify the applicable Borrower of its determination. If the Administrative Agent determines that the Proposed Borrower Amendment is not a Material Borrower Amendment, the applicable Borrowers may make such amendment without the consent of the Lenders. If the Administrative Agent determines that the Proposed Borrower Amendment is a Material Borrower Amendment, the approval of the Required Lenders shall be required and the Administrative Agent shall promptly notify the Lenders of such request for such approval, distributing, as appropriate, the Proposed Borrower Amendment and any other relevant information provided by the Borrowers; the Lenders shall have seven (7) Business Days from the date of such notice from the Administrative Agent to deliver their approval or denial thereof.
Notwithstanding the foregoing, any of the Borrowers may, without the consent of the Administrative Agent or the Lenders (and without submitting the Proposed Borrower Amendment to the Administrative Agent for determination as described above), amend its applicable Constitutional Documents: (a) to reflect the full or partial redemption of an investor’s units in accordance with the applicable Constitutional Document; (b) to admit new investors in accordance with its applicable Constitutional Documents; (c) to reflect transfers of interests in the applicable Borrowers; and (d) to cure any ambiguity, correct or supplement any provision of such Constitutional Document which is incomplete
or inconsistent with any other provision thereof (the effect of which shall not be material to the Lenders), correct any printing, stenographic or clerical error or effect changes of an administrative or ministerial nature which do not materially increase the authority of a general partner or manager or adversely affect the rights of the Lenders or to fix any other obvious error or any other error or omission of a technical or immaterial nature.
(b) The Borrowers shall not permit K-INFRA to amend or otherwise modify any provision of the Constitutional Documents of K-INFRA, the Valuation Policy or the PPM that results in or would reasonably be expected to result in any of the following (any such modification, a “Material K-INFRA Amendment”) without the consent of the Administrative Agent (acting at the direction of the Required Lenders):
(i) modify, amend or supplement the Valuation Policy to the extent (after giving effect to such changes in the Valuation Policy) the result would be an increase in the calculation of the K-INFRA Net Asset Value; or
(ii) that would result in a Material Adverse Effect.
Section 7.11. Burdensome Restrictions. No Borrower shall be a party to any agreement or contract (other than the Loan Documents) that contains a restriction, which limits its ability to repay the Obligations.
Section 7.12. ERISA. No Borrower shall establish, maintain, contribute to or have liability with respect to any Pension Plan or Multiemployer Plan except as would not reasonably be expected to have a Material Adverse Effect. No Borrower shall take any action that would cause the underlying assets of such Borrower to constitute (or fail to take any action that is required to prevent its underlying assets from otherwise constituting) “plan assets” of any “benefit plan investor” for purposes of Section 3(42) of ERISA or Section 4975 of the Code which would give rise to a “non‑exempt prohibited transaction” under Section 4975(c)(B) of the Code or Section 406(a)(1)(B) of ERISA and would subject Administrative Agent or the Lenders to any tax or penalty under Section 4975 of the Code or Section 502(i) of ERISA.
ARTICLE 8
Events of Default
Section 8.01. Events of Default. An “Event of Default” shall exist if any one or more of the following events (herein collectively called “Events of Default”) shall occur and be continuing (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) (i) any Borrower or Guarantor shall fail to pay when due, any principal of its Obligations, including any failure to pay any amount required to be paid by it under Section 2.07 hereof; or (ii) any Borrower shall fail to pay when due, any interest on its Obligations or any fee, expense, indemnity or other payment required to be paid by it hereunder, including, without limitation, payment of cash for deposit as cash collateral; and, (a) solely in the case of interest and fees, such failure continues for a period of three (3) Business Days following such failure, and (b) solely in the case of any amounts other than principal, interest and fees, such failure continues for a period of five (5) Business Days following such failure.
(b) any representation or warranty made by or on behalf of the Borrowers, K-INFRA or the Guarantors (in each case, as applicable) under this Agreement, or any of the other Loan Documents executed by any one or more of them, or in any certificate or statement furnished or made to the Lenders or any one of them by the Borrowers (in each case, as applicable) pursuant hereto, in connection herewith or with the Loans, or in connection with any of the other Loan Documents, shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made and the adverse effect of the failure of such representation or warranty shall not have been cured within thirty (30) days after written notice thereof is delivered to the Borrowers by the Administrative Agent;
(c) default shall occur in the performance of: (i) any of the covenants or agreements contained herein (other than the covenants contained in Sections 2.07, 5.01(a), 5.01(c), 5.01(e), 6.01, 6.02, 6.08 and Sections 7.01 through 7.12 hereof) by the Borrowers or K-INFRA; or (ii) the covenants or agreements of the Borrowers, K-INFRA and the Guarantors contained in any other Loan Documents executed by such person, and such default shall continue uncured to the satisfaction of the Administrative Agent for a period of thirty (30) days after the earlier of: (x) written notice thereof has been given by the Administrative Agent to the Borrowers; or (y) the Administrative Agent has been notified or should have been notified of such default pursuant to Section 8.02(b) hereof; provided that if such default is not susceptible of being cured with diligence within said thirty (30)-day period, but, in the reasonable determination of Administrative Agent, is susceptible of being cured within an additional period, then such period may be extended by the Administrative Agent after consulting with the Required Lenders, for such additional period of time, not to exceed an additional thirty (30) days, as may reasonably be necessary to cure the same; provided that the applicable Borrowers or K-INFRA, as the case may be, commences such cure within such thirty (30) day period and diligently prosecutes the same until its completion;
(d) (A) default shall occur in the performance of any one of the covenants contained in Section 5.01(c) or Section 6.01, 6.02 or 6.08 or Section 7.10(b) and such default shall continue uncured for five (5) Business Days (or in respect of Section 7.10(b), ten (10) Business Days) after the earlier of (x) written notice thereof has been given by the Administrative Agent to the Borrowers or (y) the Administrative Agent has been notified or should have been notified of such default or (B) default shall occur in the performance of any one of the covenants contained in Sections 2.07 or 5.01(a) or Sections 7.01 through 7.12 (other than Section 7.10(b)) hereof) of this Agreement;
(e) other than in compliance with the explicit provisions of the Loan Documents, any of the Loan Documents executed by any of the Borrowers or Guarantors party thereto: (i) shall cease, in whole or in material part, to be legal, valid, binding agreements enforceable against such Borrowers or Guarantors, as the case may be, in accordance with the terms thereof; (ii) shall in any way be terminated or become or be declared ineffective or inoperative except in accordance with its terms thereof; or (iii) shall in any way whatsoever cease to give or provide the respective first priority Liens (subject to any Permitted Liens), security interest, rights, titles, interest, remedies, powers, or privileges intended to be created thereby (other than, in each case, solely as the result of an action or failure to act on the part of the Administrative Agent); provided that if any of the events set forth in the foregoing clauses (i), (ii) and (iii) occur as a result of a change in any Applicable Law, and is in the reasonable judgment of the Administrative Agent susceptible of being cured, then the Administrative Agent shall be permitted to provide the Borrowers up to thirty (30) days from the date thereof to cure a default arising under this Section 8.01(e) to the reasonable satisfaction of the Administrative Agent;
(f) default shall occur with respect to the payment of any Financial Indebtedness or Guaranty Obligations of K-INFRA, the Borrowers or the Guarantors in an aggregate amount not less than three and a half percent (3.5%) of the K-INFRA Net Asset Value in the aggregate, and such default shall continue for more than the applicable period of grace or cure, if any; or any non-monetary default occurs in respect
of such Financial Indebtedness which permits such Financial Indebtedness to become due before its stated maturity by acceleration of the maturity thereof;
(g) any Borrower, Guarantor or K-INFRA shall: (i) apply for or consent to the appointment of a receiver, interim receiver, receiver and manager, examiner, process advisor, trustee, custodian, intervenor, restructuring officer, liquidator or provisional liquidator of itself or of all or a substantial part of its assets; (ii) file a voluntary petition in bankruptcy or admit in writing that it is unable to pay its debts as they become due; (iii) make a general assignment for the benefit of creditors; (iv) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any Debtor Relief Laws; (v) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency proceeding; (vi) take partnership, limited partnership, exempted limited partnership, limited liability company or corporate action for the purpose of effecting any of the foregoing; or (vii) take any analogous procedure or step in any other applicable jurisdiction;
(h) an order, order for relief, judgment or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking reorganization of any Borrower, Guarantor or K-INFRA, or appointing a receiver, interim receiver, receiver and manager, examiner, process advisor, custodian, trustee, intervenor, liquidator or provisional liquidator of such Borrower, Guarantor or K-INFRA, or of all or substantially all of its assets, and such order, judgment or decree shall continue unstayed and in effect for a period of sixty (60) days;
(i) any final judgment(s) for the payment of money in excess of three and a half percent (3.5%) of the K-INFRA Net Asset Value in the aggregate shall be rendered against any Borrower, Guarantor or K-INFRA and such judgment is not stayed, discharged or vacated after a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Borrower, Guarantor or K-INFRA to enforce any such judgment, unless such judgment is covered by insurance or bonded or unless it is being appealed and such Borrower, Guarantor or K-INFRA has posted a bond or cash collateral;
(j) the Liquidity Coverage Ratio is less than the Minimum Liquidity Coverage Ratio and such breach continues uncured for a period of thirty (30) days;
(k) a Review Event Cure Plan has been agreed in respect of a then occurring Review Event, and the Borrowers have failed to comply with the terms of such Review Event Cure Plan;
(l) a Required Asset Coverage Plan has been agreed in respect of a then occurring breach of the Minimum Asset Coverage Ratio, and the Borrowers have failed to comply with the terms of such Required Asset Coverage Plan;
(m) upon the occurrence of a Change of Control; or
(n) (i) An ERISA Event shall occur that has or would reasonably be expected, individually or together with one or more other ERISA Events, to have a Material Adverse Effect, (ii) any Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect, (iii) any Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is being terminated, within the meaning of Title IV of ERISA, and as a result of such termination the aggregate annual contributions of the applicable Borrower and the ERISA Affiliates to all Multiemployer Plans that are then being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such termination occurs by an aggregate amount which would reasonably be expected to result in a Material Adverse Effect or (iv) the assets of a Borrower are treated as “plan assets” for purposes of Section 3(42) of ERISA or Section 4975 of the Code which gives rise to a “non exempt prohibited transaction” under Section 4975(c)(1)(B) of the Code or Section 406(a)(1)(B) of ERISA subjecting Administrative Agent or the Lenders to any tax or penalty under Section 4975 of the Code or Section 502(i) of ERISA.
Section 8.02. Remedies.
(a) If an Event of Default occurs under Section 8.01(g) or 8.01(h), the obligations of the Lenders to make any Loan hereunder shall cease, and the unpaid principal amount of the Loans and all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by each Borrower.
(b) If any other Event of Default occurs and is continuing (other than under Section 8.01(g) or 8.01(h)), the Administrative Agent may (and at the direction of the Required Lenders shall) by written notice to the Borrowers (i) suspend, the Commitments of the Lenders until such Event of Default is cured or waived; (ii) terminate the Commitment of the Lenders hereunder; (iii) declare the unpaid principal amount of and all interest then accrued on, the Obligations to be forthwith due and payable, whereupon the same shall forthwith become due and payable without presentment, demand, protest, notice of default, notice of acceleration, or of intention to accelerate or other notice of any kind (other than notice of such declaration) all of which each Borrower hereby expressly waives, anything contained herein or in any other Loan Document to the contrary notwithstanding; (iv) exercise any right, privilege, or power set forth in Article 5 hereof or in the Security Documents; or (v) without notice of default or demand, pursue and enforce any of the Administrative Agent’s or the Lenders’ rights and remedies under the Loan Documents, or otherwise provided under or pursuant to any Applicable Law or agreement; provided that the Administrative Agent may select which remedies to exercise unless otherwise directed by the Required Lenders, in which case the Administrative Agent will exercise such remedies as directed by the Required Lenders.
(c) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if while an Event of Default is continuing all Obligations outstanding under the Facility at that time are indefeasibly repaid in full in cash and the obligations and Commitments of the Finance Parties under this Agreement cease in full, all Collateral and obligations of the Borrowers under the Loan Documents to which they are a party shall be released and discharged.
Section 8.03. Application of Proceeds. If the unpaid principal amount of the Loans (including PIK Interest) and all other Obligations have become due and payable following an Event of Default, and such acceleration and its consequences have not been rescinded and annulled, any funds collected by the Administrative Agent or any Lender hereunder or pursuant to any other Loan Document shall be applied by the Administrative Agent and the Lenders in the following order:
First, to pay all fees and costs and expenses of the custodian (if any), the Administrative Agent and Collateral Agent;
Second, to pay all accrued and unpaid interest and fees (other than, for the avoidance of doubt, PIK Interest) on the Loans;
Third, to pay all unpaid principal of the Principal Obligations (including PIK Interest);
Fourth, to pay, on a pari passu basis, any other outstanding Obligations;
Fifth, to pay the remainder, if any, to the Borrowers or to any other person legally entitled thereto.
Notwithstanding the foregoing, the Administrative Agent shall, at its option use any amounts received on account of the Obligations, including any Asset Proceeds to make payments set forth above in respect of the Obligations, or in lieu thereof, to make payments in respect of portfolio investment obligations to the extent then due and payable.
ARTICLE 9
The Agents
Section 9.01. Appointment.
(a) Authority of the Administrative Agent. Each Lender hereby designates and appoints Mizuho as the Administrative Agent and Collateral Agent (solely for purposes of this Article 9, where the context so requires, the Administrative Agent and the Collateral Agent shall collectively be the “Administrative Agent”) of such Lender to act as specified herein and the other Loan Documents, and each such Lender hereby authorizes the Administrative Agent and Collateral Agent, as the agent for such Lender, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent and Collateral Agent, as applicable, by the terms hereof and of the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other Loan Documents, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein and therein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any of the other Loan Documents, or shall otherwise exist against the Administrative Agent. The provisions of this Article 9 are solely for the benefit of the Administrative Agent and the Lenders and none of the Borrowers or any Affiliate of the foregoing (each, a “Borrower Party”) shall have any rights as a third-party beneficiary of the provisions hereof (except for the provisions that explicitly relate to the Borrowers in Section 9.10 hereof). In performing its functions and duties under this Agreement and the other Loan Documents, the Administrative Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for any Borrower Party.
(b) [Reserved].
(c) Release of Collateral. The Finance Parties irrevocably authorize the Collateral Agent, at the Administrative Agent’s option and in its sole discretion, to release any security interest in or Lien on any Collateral granted to or held by the Collateral Agent: (i) upon termination of this Agreement and the other Loan Documents, termination of the Commitments and all Letters of Credit and payment in full of all of the Obligations, including all fees and indemnified costs and expenses that are then due and payable pursuant to the terms of the Loan Documents; (ii) pursuant to any express provision of a Loan Document; and (iii) if approved by the Lenders pursuant to the terms of Section 10.05. Upon the request of the Administrative Agent, the Lenders shall confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant to this Section 9.01(c).
Section 9.02. Delegation of Duties. The Administrative Agent may execute any of its duties hereunder or under the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of legal counsel, accountants, and other professionals selected by the Administrative Agent concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible
to any Lender for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care, nor shall it be liable for any action taken or suffered in good faith by it in accordance with the advice of such persons.
Section 9.03. Exculpatory Provisions. Neither the Administrative Agent nor any of its Affiliates, nor any of their respective officers, directors, employees, agents or attorneys-in-fact, shall be liable to any Lender for any action lawfully taken or omitted to be taken by it or such person under or in connection herewith or in connection with any of the other Loan Documents (except for its or such person’s own gross negligence or willful misconduct) or responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any of the Borrower Parties contained herein or in any of the other Loan Documents or in any certificate, report, document, financial statement or other written or oral statement referred to or provided for therein, or received by the Administrative Agent under or in connection herewith or in connection with the other Loan Documents, or enforceability or sufficiency therefor of any of the other Loan Documents, or for any failure of a Borrower Party to perform its obligations hereunder or thereunder. The Administrative Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Agreement, or any of the other Loan Documents or for any representations, warranties, recitals or statements made herein or therein or made by any Borrower Party in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Administrative Agent to the Lenders or by or on behalf of the Borrower Parties to the Administrative Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or the use of the Letters of Credit or of the existence or possible existence of any Default or Event of Default or to inspect the properties, books or records of the Borrower Parties. The Administrative Agent is not a trustee for the Lenders and owes no fiduciary duty to the Lenders hereunder and/or pursuant to the Security Documents, as each is governed by New York law. Each Lender recognizes and agrees that the Administrative Agent shall not be required to determine independently whether the conditions described in Section 3.02(d) or 3.02(e) hereof have been satisfied and, when the Administrative Agent disburses funds to any Borrower, or causes Letters of Credit to be issued, it may rely fully upon statements contained in the relevant requests by any Borrower.
Section 9.04. Reliance on Communications. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, email, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to any of the Borrower Parties, independent accountants and other experts selected by the Administrative Agent with reasonable care). The Administrative Agent may deem and treat each Lender as the owner of its interests hereunder for all purposes unless an Assignment Agreement shall have been delivered to the Administrative Agent in accordance with Section 10.06 hereof. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or under any of the other Loan Documents unless it shall first receive such advice or concurrence of the Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Loan Documents in accordance with a request of the Required Lenders (or to the extent specifically required, all the Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders (including their successors and assigns).
Section 9.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or a Borrower Party referring to the Loan Document, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders and as is permitted by the Loan Documents.
Section 9.06. Non-Reliance on the Administrative Agent and the Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or attorneys-in-fact has made any representations or warranties to it and that no act by the Administrative Agent or any Affiliate thereof hereinafter taken, including any review of the affairs of any Borrower Party, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower Parties and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Borrower Parties which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
Section 9.07. Indemnification. The Lenders agree to, jointly and severally, indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their respective Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including without limitation at any time following payment in full of the Obligations) be incurred by the Administrative Agent in its capacity as such in any way relating to or arising out of this Agreement or the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence, fraud or willful misconduct of the Administrative Agent. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section 9.07 shall survive the payment of the Obligations.
Section 9.08. Administrative Agent in Its Individual Capacity Security Documents. With respect to the Loans made and Letters of Credit issued and all obligations owing to it, the Administrative Agent acting in its individual capacity shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it were not an agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity. The Administrative Agent acting in its individual capacity and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Borrower as though the Administrative Agent were not an agent hereunder and without any duty to account therefor to the other Lenders.
Section 9.09. Successor Agent. The Administrative Agent may at any time resign upon twenty (20) days’ prior written notice to the Lenders and the Borrowers, subject to the prior written consent of the Borrowers, in their sole discretion (except upon the declaration that the Obligations are immediately due and payable pursuant to Section 8.02 hereof upon the occurrence and continuation of an Event of Default). Upon receipt of any such notice of resignation, the Required Lenders shall have the right, (subject, except when an Event of Default of the type described in Section 8.01(a), 8.01(g) or 8.01(h) hereof (or any other Event of Default which has continued for a period of thirty (30) days) exists, to the consent of the Borrowers, such consent not to be unreasonably withheld), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Letter of Credit Issuer, (subject, except when an Event of Default of the type described in Section 8.01(a), 8.01(g) or 8.01(h) hereof (or any other Event of Default which has continued for a period of thirty (30) days) exists, to the consent of the Borrowers, such consent not to be unreasonably withheld), appoint a successor Administrative Agent meeting the qualifications set forth above, provided that if Administrative Agent shall notify the Borrowers and the Lenders that no qualifying person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and: (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by Administrative Agent on behalf of Lenders or the Letter of Credit Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed); and (b) all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender and the Letter of Credit Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Prior to the occurrence and continuance of an Event of Default pursuant to Section 8.01(a) that has not been cured within sixty (60) days in no event may any Competitor be appointed successor Administrative Agent hereunder. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section and Section 10.02 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective related parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Section 9.10. Reliance by the Borrowers. Each Borrower shall be entitled to rely upon, and to act or refrain from acting on the basis of, any notice, statement, certificate, waiver or other document or
instrument delivered by the Administrative Agent to such Borrower so long as the Administrative Agent is purporting to act in its respective capacity as the Administrative Agent pursuant to this Agreement, and such Borrower shall not be responsible or liable to any Lender (or to any participant or Assignee), or as a result of any action or failure to act (including actions or omissions which would otherwise constitute defaults hereunder) which is based upon such reliance upon the Administrative Agent. Such Borrower shall be entitled to treat the Administrative Agent as the properly authorized Administrative Agent pursuant to this Agreement until such Borrower shall have received notice of resignation, and such Borrower shall not be obligated to recognize any successor Administrative Agent until such Borrower shall have received written notification satisfactory to it of the appointment of such successor.
Section 9.11. Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition examinership, rescue process or other judicial proceeding relative to any Borrower, the Finance Parties acknowledge and agree that the Administrative Agent (irrespective of whether the principal of any Loan or Letter of Credit Liability shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Liability and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Finance Parties (including any claim for the reasonable compensation, expenses, disbursements and advances of the Finance Parties and their respective agents and counsel and all other amounts due the Finance Parties hereunder) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
(c) and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Finance Party 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 Finance Party, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent hereunder.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Finance Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Finance Party or to authorize the Administrative Agent to vote in respect of the claim of any Finance Party in any such proceeding.
Section 9.12. Delivery of Notices to the Lenders. Promptly upon receipt of any written notice, report or information from the Borrowers under the Loan Documents, the Administrative Agent will provide copies of such notice, report or information to the Lenders in a time and manner reasonable under the circumstances.
Section 9.13. Erroneous Payments.
(a) If the Administrative Agent notifies a Lender, Letter of Credit Issuer or Finance Party, or any person who has received funds on behalf of a Lender, Letter of Credit Issuer or Finance Party (any such Lender, Letter of Credit Issuer, Finance Party or other recipient, but in any event excluding any Borrower and their Affiliates, a “Payment Recipient”) that the Administrative Agent has determined in
its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Finance Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), (i) such Erroneous Payment comprised of funds of the Administrative Agent shall at all times remain the property of the Administrative Agent, (ii) such Erroneous Payment comprised of funds of a Borrower shall at all times remain the property of such Borrower and (iii) such Erroneous Payment shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent or such Borrower, as applicable, and such Lender, Letter of Credit Issuer or Finance Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.13(b).
(c) Each Lender, Letter of Credit Issuer or Finance Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Letter of Credit Issuer or Finance Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Letter of Credit Issuer or Finance Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with the preceding clause (a) from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant class of Loans with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrowers) deemed to execute and deliver an Assignment Agreement (or, to the extent applicable, an agreement incorporating an Assignment Agreement by reference pursuant to an approved electronic communication method pursuant to Section 10.01(b) hereof as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the applicable Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Finance Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or held on behalf of, a Borrower for the purpose of prepaying, repaying, discharging or otherwise satisfying any Obligations owed by such Borrower.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 9.13 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Letter of Credit Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) Notwithstanding anything to the contrary herein or in any other Loan Document, no Borrower nor any of its Affiliates shall have any obligations or liabilities directly or indirectly arising out of this Section 9.13 in respect of any Erroneous Payment (other than having consented to any assignment referenced in Section 9.13(d) above).
ARTICLE 10
Miscellaneous
Section 10.01. Notices.
(a) Notices Generally. Any notice or other communication herein required or permitted to be given to the Borrowers, the Collateral Agent or the Administrative Agent, shall be sent to such person’s address as set forth on Schedule 10.01 hereto or in the other relevant Loan Document, and in the case of any Lender, the address as indicated on Schedule 10.01 hereto or otherwise indicated to the Administrative Agent in writing. Except as otherwise set forth in clause (b) below, each notice hereunder shall be in writing and may be personally served or sent by electronic mail or a nationally recognized overnight courier service and shall be deemed to have been given when signed for against receipt thereof or upon receipt of electronic mail (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); provided that (i) any such notice or other communication shall at the request of the Administrative Agent be provided to any sub-agent as designated by the Administrative Agent from time to time; (ii) any such notice or other communication to the Administrative Agent or the Collateral Agent may be made via SWIFT (to the extent, under this clause (ii), that such notice or communication is reasonably able to be sent in such manner); and (iii) any notice to the Borrowers sent by electronic mail must be accompanied by delivery by United States mail or a nationally recognized overnight courier service and shall be treated for purposes hereunder as being sent by United States mail or courier service.
(b) Electronic Communications.
(i) Notices and other communications to any Agent, Lenders or the Letter of Credit Issuer hereunder may be delivered or furnished by electronic communication (including e mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent or the Collateral Agent, as applicable, provided that the foregoing shall not apply to notices to any Agent, any Lender or pursuant to Article 2 if such person has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. The Administrative Agent, the Collateral Agent or the Borrower Representative may, in their respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (A) notices and other communications (other than notices and communications to the Borrowers) sent to an e-mail address shall be deemed received upon the intended recipient’s receipt thereof (without any “undeliverable” message or other evidence of non-delivery received by the sender), 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 (B) notices or communications (other than notices and communications
to the Borrowers or hereunder) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (A) of notification that such notice or communication is available and identifying the website address therefor, provided that, for both clauses (A) and (B) above, 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.
(ii) The Borrowers understand that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(iii) The Platform and any Approved Electronic Communications are provided “as is” and “as available”. None of the Agents or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects is made by the Agent Affiliates in connection with the Platform or the Approved Electronic Communications. In no event shall the Agent Affiliates have any liability to any Borrower, any Lender or any other person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of communications through the Platform or an Approved Electronic Communication.
(iv) The Borrowers, each Lender and each Agent agrees that the Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.
(v) Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof.
Section 10.02. Expenses. The Borrowers agree to pay (within five (5) days after the receipt of written notice from the Administrative Agent) its pro rata share of all documented out-of-pocket costs and expenses of the Administrative Agent (including without limitation the reasonable fees and expenses of one designated law firm in each applicable jurisdiction acting as counsel to the Administrative Agent) reasonably and actually incurred by it in connection with the negotiation, preparation, execution and delivery of this Agreement and the other Loan Documents and any and all amendments, modifications, waivers and supplements thereof or thereto, and, if an Event of Default is continuing, all documented out-of-pocket costs and expenses of the Administrative Agent the Letter of Credit Issuer and the Lenders (including, without limitation, the reasonable attorneys’ fees of the Administrative Agent’s the Letter of Credit Issuer’s and the Lenders’ legal counsel) reasonably incurred by them in connection with the preservation and enforcement of the Administrative Agent’s, the Letter of Credit Issuer’s and the Lenders’ rights under this Agreement and the other Loan Documents.
Section 10.03. Indemnity.
(a) Each Borrower agrees to indemnify the Administrative Agent, the Letter of Credit Issuer and each of the Lenders and their respective directors, officers, employees, attorneys and agents (each such Person, including without limitation the Administrative Agent, the Letter of Credit Issuer and each of the Lenders, being called an “Indemnitee”) its pro rata share against, and to hold each Indemnitee harmless from, any and all losses, claims, actions, judgments, suits, disbursements, penalties, damages, liabilities and related expenses and counsel fees and expenses (including without limitation the counsel fees and expenses incurred in the enforcement of any Loan Documents against any Borrower or Guarantor), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:
(i) this Agreement or any other Loan Document, including without limitation the execution, delivery and enforcement thereof, or any agreement or instrument contemplated thereby,
(ii) the use or misuse of the proceeds of the Loans,
(iii) the fraudulent actions or misrepresentations of any Borrower or Guarantor or its Affiliates in connection with the transactions contemplated by this Agreement and the other Loan Documents, or any breach by any Borrower or Guarantor of its obligations under this Agreement or any other Loan Document, or
(iv) any claim, litigation, investigation or proceeding relating to any of the foregoing or relating to any transaction contemplated hereby, whether or not any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, apply (1) to any such losses, claims, actions, judgments, suits, disbursements, penalties, damages, liabilities or related expenses as determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from gross negligence, fraud or willful misconduct of such Indemnitee or from any dispute between or among the Indemnitees and not involving any Borrower or Guarantor or (2) with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(b) To the fullest extent permitted by Applicable Law, the Borrowers and Guarantors shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in clause (a) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, other than for direct or actual damages resulting from the gross negligence, bad faith, material breach of contract or willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction.
(c) WITHOUT LIMITATION OF AND SUBJECT TO THE FOREGOING, THE BORROWERS INTEND AND AGREE THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNITEE WITH RESPECT TO ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, THE REASONABLE AND DOCUMENTED FEES AND EXPENSES OF COUNSEL) WHICH IN WHOLE OR IN PART ARE
CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OR CLAIMS OF NEGLIGENCE OF SUCH OR ANY OTHER INDEMNITEE OR ANY STRICT LIABILITY OR CLAIMS OF STRICT LIABILITY.
(d) The provisions of this Section 10.03 shall survive termination of this Agreement, and shall remain operative and in full force and effect regardless of the expiration of the Commitments, the consummation of the transactions contemplated hereby, the repayment of the Loans, the occurrence of the Maturity Date, the invalidity, illegality, or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Lenders. All amounts due under this Section 10.03 shall be payable promptly on written demand therefor.
Section 10.04. Set-Off. In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, upon the occurrence and continuance of any Event of Default, each Lender is hereby authorized by the Borrowers at any time or from time to time subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to the Borrower Representative or to any other person (other than the Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other indebtedness at any time held or owing by such Lender or Letter of Credit Issuer, as applicable, to or for the credit or the account of the Borrowers against and on account of the obligations and liabilities of the Borrowers to such Lender or Letter of Credit Issuer, as applicable, hereunder and under the Loan Documents, including all claims of any nature or description arising out of or connected hereto and participations therein or with any other Loan Document, irrespective of whether or not (a) such Lender or Letter of Credit Issuer, as applicable, shall have made any demand hereunder or (b) the principal of or the interest on the Loans or Letters of Credit, as applicable, or any other amounts due hereunder shall have become due and payable hereunder and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that, if any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Sections 2.06(a) and 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees to notify the Borrower Representative and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender and their respective Affiliates under this Section 10.04 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have.
Section 10.05. Amendments and Waivers.
(a) Required Lenders’ Consent. Subject to the additional requirements of Section 10.05(b) and (c) and the provisos below, no amendment, modification, termination or waiver of any provision of this Agreement, or consent to any departure by the Borrowers therefrom, shall in any event be effective without the written concurrence of the Administrative Agent and the Required Lenders; provided that (i) the Administrative Agent may, with the consent of the Borrower Representative only, amend, modify or supplement this Agreement or any other Loan Document to cure any ambiguity, omission, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, (ii) the Administrative Agent may, in its sole and absolute discretion, consent to any action or omission as set
forth in this Agreement and may grant waivers, concessions and other indulgences in accordance with the terms of this Agreement and (iii) no provisions of Section 2.03 hereof may be amended or modified without the consent of the Letter of Credit Issuer.
(b) Unanimous Lenders’ Consent. Without the written consent of each Lender affected thereby (other than any Defaulting Lenders), no amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i) increase the amount or extend the term of the Commitment of such Lender (other than increases complying with Section 2.02 hereof or an extension of the Stated Maturity Date pursuant to Section 2.18 hereof);
(ii) extend the scheduled final maturity of any Loan or Note;
(iii) waive, reduce or postpone any scheduled repayment (but not prepayment);
(iv) reduce the rate of interest or fee on any Obligation;
(v) extend the time for payment of any such interest or fee;
(vi) reduce the principal amount of the Obligations (except as a result of the application of payments or prepayments);
(vii) amend the definition of “Adjusted Value”, “Asset Coverage Ratio,” “Cash Control Event”, “Eligible Asset,” “Eligible Asset Concentration Limit,” “Liquidity Coverage Ratio,” “Maintenance Asset Coverage Ratio,” “Excess Prepayment Event,” “Material Asset Event,” Minimum Asset Coverage Ratio,” “Minimum Liquidity Coverage Ratio,” “Review Event,” “Value” or any defined terms used therein;
(viii) amend, modify, terminate or waive any provision of this Section 10.05(b), Section 10.05(c) or any other provision of this Agreement that expressly provides that the consent of all Lenders is required;
(ix) amend the definition of “Required Lenders” or any of the related defined terms;
(x) consent to the assignment or transfer by a Borrower of any of its rights and obligations under (or in respect of) the Loan Documents;
(xi) release all or any material portion of the Collateral except as expressly provided in the Loan Documents and except in connection with a “credit bid” undertaken by the Collateral Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 1029(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other analogous Debtor Relief Law or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release);
(xii) change the currency in which any Obligation is denominated;
(xiii) change Section 2.15 or any other applicable provision in a manner that would alter the pro rata sharing of payments required thereby; or
(xiv) subordinate (i) the Liens on all or any of the Collateral securing the Obligations to Liens securing any other Financial Indebtedness or other obligations or (ii) the Obligations in contractual right of payment to any other Financial Indebtedness or other obligations.
(c) Other Consents. Except as set forth in clause (a) above, no amendment, modification, termination or waiver of any provision of this Agreement, or consent to any departure by the Borrowers therefrom, shall amend, modify, terminate or waive any provision of this Agreement as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent, as applicable.
(d) Execution of Amendments, Etc. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Borrowers in any case shall entitle any Borrower to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.05 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by the Borrowers, on the Borrowers.
(e) Cashless Settlement. Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower Representative, the Administrative Agent and such Lender.
Section 10.06. Parties Bound; Assignment.
(a) Parties Bound. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that, except as expressly permitted hereby, no Borrower nor Guarantor may assign or otherwise transfer any of its respective rights under this Agreement without the prior written consent of all Lenders.
(b) Participations. Any Lender may at any time grant to one or more banks or other institutions (each a “Participant”) a participating interest in its Commitment or any or all of its Loans; provided that (i) such Lender has provided prior written notice to the Borrowers, (ii) any such participation shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $5,000,000 (or such Lender’s entire remaining Commitment), and (iii) prior to the occurrence and continuance of an Event of Default pursuant to Section 8.01(a) that has not been cured within sixty (60) days, no such participation shall be granted to any Competitor. In the event of any such grant by a Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and the Borrowers, the Guarantors and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the Obligations including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement. The voting rights of each Participant shall be limited to (i) reductions or increases in the amount, or altering the term, of the Commitment of such Participant and (ii) changes to the Maturity Date or interest rate. The Borrowers agree that each Participant shall be entitled to the benefits of Section 2.09, Section 2.10 and Section 9.13 hereof with respect to its participating interest; provided that in no event shall the Borrowers be obligated to pay to such Participant amounts greater than those the Borrowers would have been required to pay to the granting Lender in the absence of such
participation; and provided, further, that the Participant shall have complied with the obligations of such sections as though such Participant were a Lender. An assignment or other transfer which is not permitted by subsection (c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest which is permitted in accordance with this subsection (b). Each Lender that sells a participating interest in any Loan, Commitment or other interest to a Participant shall, as agent of the Borrowers solely for the purpose of this Section 10.06(b), record in book entries maintained by such Lender the name and the amount of the participating interest of each Participant entitled to receive payments in respect of such participating interests.
(c) Assignments. With the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and with the prior written consent of the Borrowers (such consent not to be unreasonably withheld, conditioned or delayed, and such consent of the Borrowers not to be required for assignments to another existing Lender, to a Federal Reserve Bank, an Affiliate of a Lender (so long as (x) such Affiliate is of substantially similar credit quality as the assigning Lender or (y) if such Affiliate is a commercial paper conduit, the assigning Lender provides credit support acceptable to the Borrowers in their reasonable discretion) or during the existence of an Event of Default of the type described in Section 8.01(a), (g) or (h) hereof or any other Event of Default which has continued uncured for a period of thirty (30) days), any Lender may (at its expense) at any time assign to one or more persons (other than a natural person) (an “Assignee”) all, or a proportionate part of all (in a constant, not varying, percentage), of its rights and obligations under this Agreement, and such Assignee shall assume such rights and obligations, pursuant to an Assignment Agreement; provided that:
(i) this Section 10.06(c) shall not restrict an assignment or other transfer by any Lender to a Federal Reserve Bank, but no such assignment to a Federal Reserve Bank shall release the assigning Lender from its obligations hereunder;
(ii) except in the case of an assignment to another Lender, or the assignment of all of a Lender’s rights and obligations under this Agreement, any assignment shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $5,000,000 (or such Lender’s entire remaining Commitment); provided that, no Lender shall have a Commitment of less than $5,000,000 following any such assignment (unless the assigning Lender shall have assigned all of its rights and obligations under this Agreement);
(iii) prior to the occurrence and continuance of an Event of Default pursuant to Section 8.01(a) that has not been cured within sixty (60) days, the Assignee shall not be a Competitor;
(iv) the Assignee shall provide any required documentation under Section 2.10 of this Agreement; and
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment Agreement, and the Assignee shall pay to the transferor Lender an amount equal to the purchase price agreed between such transferor Lender and such Assignee, and the transferor Lender shall deliver payment of a processing and recordation fee of $3,500 to the Administrative Agent.
(d) Consequences of Assignment. Upon execution and delivery of such Assignment Agreement and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in
such Assignment Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required.
(e) Affiliated Lenders. No assignment shall be made by a Lender to the Borrower or Affiliates of the Borrower, or any investment manager thereof, except that a Lender may make an assignment to an Affiliated Lender, provided that: (A) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under, this Agreement or any other Loan Document, each Affiliated Lender will be deemed to have consented in the same proportion as the non‑Affiliated Lenders that have consented to such matter, and (B) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (each, a “Plan of Reorganization”), each Affiliated Lender hereby agrees (x) not to vote on such Plan of Reorganization, (y) if such Affiliated Lender does vote on such Plan of Reorganization notwithstanding the restriction in the foregoing clause (x), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Plan of Reorganization in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (z) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (y), in each case under this clause (e). Each Affiliated Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest and given as security for the performance of the Obligations) as such Affiliated Lender’s attorney‑in‑fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary or appropriate to carry out the provisions of this clause (e), including to ensure that any vote of such Affiliated Lender on any Plan of Reorganization is withdrawn or otherwise not counted.
(f) Register of Lenders. The Administrative Agent shall maintain at its principal offices in New York or at such other location as the Administrative Agent shall designate in writing to each Lender and the Borrowers, a copy of each Assignment Agreement and Lender Joinder Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders, the principal amount of each Lender’s Pro Rata Share of the Commitments and the Loans, and the name and address of each Lender’s agent for service of process in New York (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each person or entity whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection and copying by any Borrower or any Lender during normal business hours upon reasonable prior notice to the Administrative Agent. A Lender may change its address and its agent for service of process upon written notice to the Administrative Agent, which notice shall be effective upon actual receipt by the Administrative Agent, which receipt will be acknowledged by the Administrative Agent upon request. Upon receipt of any Assignment Agreement or Lender Joinder Agreement, the Administrative Agent shall, if such Assignment Agreement has been completed, fully-executed and is substantially in the form of Exhibit E hereto or if such Lender Joinder Agreement has been completed, fully-executed and is substantially in the form of Exhibit M hereto: (i) accept such an Assignment Agreement or Lender Joinder Agreement; (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the
Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(g) Disclosure of Information. Any Lender may furnish any information concerning any Borrower Party in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants), subject, however, to the provisions of Section 10.24 hereof.
Section 10.07. [Reserved].
Section 10.08. Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Loans. Notwithstanding anything herein or implied by law to the contrary, the agreements of the Borrowers set forth in Section 2.09, Section 2.10, Section 2.16, Section 10.02, Section 10.03, Section 10.04 and Section 10.21 and the agreements of Lenders set forth in Section 2.10 and Section 9.07 shall survive the payment in full of the Loans and all other Obligations, and the termination hereof.
Section 10.09. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right, remedy or privilege hereunder or under any other Loan Document shall impair such power, right, remedy or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right, remedy or privilege preclude other or further exercise thereof or of any other power, right, remedy or privilege. The powers, rights, remedies and privileges given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all powers, rights, remedies and privileges existing by virtue of any statute or rule of law or in any of the other Loan Documents. Any forbearance or failure to exercise, and any delay in exercising, any power, right, remedy or privilege hereunder shall not impair any such power, right, remedy or privilege or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such power, right, remedy or privilege.
Section 10.10. Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Borrower or Guarantor or any other person or against or in payment of Obligations. To the extent that any payment by or on behalf of any Borrower or Guarantor is made to any of Administrative Agent or Lenders (or Administrative Agent on behalf of the Lenders), or Administrative Agent or any Lender enforces any security interests or exercises its right of setoff, and such payment or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required (including pursuant to any settlement entered into by any Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
Section 10.11. Severability. In case any provision in or obligation hereunder or under any other Loan Document shall be invalid, illegal or unenforceable in any jurisdiction, such provision shall be
ineffective only to the extent of such invalidity, illegality or unenforceability, which shall not affect any other provisions hereof or the validity, legality or enforceability of such provision in any other jurisdiction. If any provision of this Agreement shall conflict with or be inconsistent with any provision of any other Loan Documents, then the terms, conditions and provisions of this Agreement shall prevail.
Section 10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of the Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Loan Document, and no action taken by the Lenders pursuant hereto or thereto, shall be deemed to constitute the Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent indebtedness, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
Section 10.13. Headings. Article and Section headings used herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of or be given any substantive effect under this Agreement or any other Loan Document.
Section 10.14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS AND CAUSES OF ACTION SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 10.15. CONSENT TO JURISDICTION.
(a) SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, THE BORROWERS, FOR THEMSELVES AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.01; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
(b) The Borrowers hereby appoint and consent to KKR as its agent upon whom process or demands may be served in any action arising out of or based on this Agreement or the transactions contemplated hereby. The Borrowers may at any time and from time to time vary or terminate the appointment of such process agent or appoint an additional process agent; provided that the Borrowers will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Borrowers in respect of this Agreement may be served. If at any time the Borrowers shall fail to maintain any required office or agency in the Borough of Manhattan, The City of New York, or shall fail to furnish the Agents with the address thereof, notices and demands may be served on a Borrower by mailing a copy thereof by registered or certified mail or by nationally recognized overnight courier, postage prepaid, to such Borrower at its address specified herein.
Section 10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO IRREVOCABLY WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL IN ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS OR THE LENDER/BORROWER RELATIONSHIPS THAT ARE BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL‑ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 10.17. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under Applicable Law shall not exceed the Maximum Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Maximum Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Maximum Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Obligations are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrowers shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Maximum Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrowers to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Maximum Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrowers.
Section 10.18. Effectiveness; Counterparts. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by the Borrowers and the Administrative Agent of written notification of such execution and authorization of delivery thereof. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 10.19. PATRIOT Act. Each Lender, the Collateral Agent and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender, the Collateral Agent or the Administrative Agent, as applicable, to identify such Borrower in accordance with the PATRIOT Act.
Section 10.20. Electronic Execution. The words “execution”, “signed”, “signature”, and words of like import in any Loan Document or Assignment Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 10.21. No Fiduciary Duty. Each Agent, Lender and their Affiliates (collectively, solely for purposes of this Section 10.21, the “Lenders”), may have economic interests that conflict with those of the Borrowers, their equityholders and/or their Affiliates. The Borrowers acknowledge and agree, and acknowledges their respective Affiliates’ understandings, that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and the Borrowers, their equityholders or their Affiliates, on the other. The Borrowers acknowledge and agree, and acknowledges their respective equityholders and Affiliates’ understandings, that (a) each of the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrowers, on the other, and (b) in connection therewith and with the process leading thereto, (i) no Lender has assumed an advisory or fiduciary responsibility in favor of any Borrower, its equityholders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Borrower, its equityholders or its Affiliates on other matters) or any other obligation to the Borrowers except the obligations expressly set forth in the Loan Documents and (ii) each Lender is acting solely as principal and not as the agent or fiduciary of any Borrower, its management, equityholders, creditors or any other person. The Borrowers acknowledge and agree that they have consulted their own legal, accounting, regulatory, tax and other financial advisors to the extent it deemed appropriate, that it is responsible for making its own independent judgment with respect to such transactions and the process
leading thereto, and is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated by the Loan Documents. The Borrowers agree that they will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to any Borrower, in connection with such transaction or the process leading thereto.
Section 10.22. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such person became a Lender party hereto, to, and (y) covenants, from the date such person became a Lender party hereto to the date such person ceases being a Lender party hereto, for the benefit of the parties hereto, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans in connection with the Loans, the letters of credit, the Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement, or
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the letters of credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender, such Lender further (x) represents and warrants, as of the date such person became a Lender party hereto, to, and (y) covenants, from the date such person became a Lender party hereto to the date such person ceases being a Lender, for the benefit of, the Administrative Agent, each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers, that none of the Administrative Agent, any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the letters of credit, the Commitments and this Agreement (including in connection with the reservation of exercise or any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section 10.23. Judgment Currency.
(a) The Borrowers’ obligations hereunder and under the other Loan Documents to make payments in Dollars (for purposes herein, the “Obligation Currency”) shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Finance Party entitled thereto of the full amount of the Obligation Currency expressed to be payable to it under this Agreement or the other Loan Documents. If for the purpose of obtaining or enforcing judgment against the Borrowers in any court or in any jurisdiction, it becomes necessary to convert an amount due hereunder into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the “Judgment Currency”), the rate of exchange shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the Obligation Currency with the Judgment Currency on the Business Day preceding that on which the final judgment is given (such day being hereinafter referred to as the “Judgment Currency Conversion Date”).
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, the Borrowers jointly and severally covenant and agree to pay, or cause to be paid, and each jointly and severally indemnifies the Finance Parties for such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency that could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate or exchange prevailing on the Judgment Currency Conversion Date. The foregoing indemnity shall constitute a separate and independent obligation of the Borrowers and shall survive any termination of this Agreement and the other Loan Documents, and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.
(c) For purposes of determining any rate of exchange for this Section 10.23, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
Section 10.24. Confidentiality. The Borrowers acknowledge and agree that the Administrative Agent may provide to the Lenders, and that the Administrative Agent and each Lender may provide to any Affiliate of a Lender or Participant or Assignee or proposed Participant or Assignee or any other Person as deemed necessary or appropriate in any Lender’s reasonable judgment, originals or copies of this Agreement, all Loan Documents and all other documents, certificates, opinions, letters of credit, reports, and other material information of every nature or description, and may communicate all oral information, at any time submitted by or on behalf of any Borrower or Guarantor or received by the Administrative Agent or a Lender in connection with the Loans, the Letter of Credit Liability, the Commitments or any Borrower or Guarantor; provided that, prior to any such delivery or communication, the Lender, Affiliate of a Lender, Participant, or Assignee, or proposed Participant or Assignee or such other Person, as the case may be, shall agree to preserve the confidentiality of all data and information which constitutes Confidential Information; (b) the Administrative Agent and the Lenders (i) acknowledge and agree that information with respect to Assets has been and will be delivered on a confidential basis; (ii) acknowledge and agree that such information is Confidential Information; and (iii) agree that such information shall be subject to the provisions of this Section 10.24; and (c) anything herein to the contrary notwithstanding, the provisions of this Section 10.24 shall not preclude or restrict any such party from disclosing any Confidential Information: (i) with the prior written consent of any Borrower; (ii) upon the order of or pursuant to the rules and regulations of any Governmental Authority having jurisdiction over such party; (iii) in connection with any audit by an independent public accountant of such party, provided such auditor thereto agrees to be bound by the provisions of this Section 10.24;
(iv) to examiners or auditors of any applicable Governmental Authority which examines such party’s books and records while conducting such examination or audit; (v) as otherwise specifically required by law or legal process, including, for the avoidance of doubt, in connection with any enforcement action relating to the Loan Documents; (vi) professional advisers, insurers, insurance brokers and service providers of a Lender who are under a duty of confidentiality to a Lender; (vii) any rating agency or direct or indirect provider of credit protection to a permitted party (or its brokers); or (viii) to the extent such information (A) becomes publicly available other than as a result of a breach of this Section 10.24 or (B) becomes publicly available to the Administrative Agent, the issuing bank or the Lenders on a non-confidential basis from a source other than the Borrowers. Notwithstanding the foregoing, the Borrower and the Guarantors, the Administrative Agent, the Collateral Agent and the Lenders (and each of their respective employees, representatives, or other agents) may disclose to taxing authorities, the tax treatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to them relating to such tax treatment and tax structure. Notwithstanding the termination of this Agreement, the Administrative Agent, the Collateral Agent and each Lender agrees to hold Confidential Information in accordance with its internal document retention policies and procedures for two (2) years following the termination of this Agreement, which policies and procedures, as of the Closing Date, provide that information considered confidential shall be held on a confidential basis.
Section 10.25. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-down and Conversion Powers of the applicable Resolution Authority.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as a deed by their respective officers thereunto duly authorized as of the date first written above.
| | BORROWER REPRESENTATIVE: |
| | |
| | K-INFRA LIQUIDITY LIMITED |
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| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
| | | |
| | BORROWERS: |
| | |
| | K-INFRA PERCIVAL AGGREGATOR GP LLC |
| | |
| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
| | | |
| | K-INFRA PEGASUS AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
| | | |
| | K-INFRA KYOTO AGGREGATOR GP LIMITED |
| | | |
| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
| | | |
| | K-INFRA ZEUS AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
| | K-INFRA STELLAR AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
| | | |
| | K-INFRA OAK AGGREGATOR GP LIMITED |
| | |
| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
| | | |
| | K-INFRA DENALI AGGREGATOR GP LLC |
| | |
| | By: | /s/ Michael Ryan |
| | | Name: Michael Ryan |
| | | Title: Chief Operating Officer |
