SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any Loan (other than an ABR Loan) other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (b) the conversion of any Loan (other than an ABR Loan) other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan (other than an ABR Loan) on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(a) and is revoked in accordance therewith) or (d) the assignment of any Loan (other than an ABR Loan) other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19 or 9.02(e), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense arising from such event. For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 2.16, each applicable Loan made by a Lender (and each related reserve, special deposit or similar requirement) shall be conclusively deemed to have been funded at Term SOFR or the applicable Relevant Rate used in determining the rate for such Loan by a matching deposit or other borrowing in the interbank market for such currency for a comparable amount and for a comparable period, whether or not such Loan was in fact so funded. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent demonstrable error. The Borrower shall pay such Lender the amount due within thirty (30) days after receipt thereof.
SECTION 2.17. Taxes.
(a) Payments Free of Taxes. All payments by or on account of any obligation of any Loan Party 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 any applicable withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party 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 2.17) the applicable Lender (or, in the case of a payment received by the Administrative Agent for its own account, the Administrative Agent) 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 the Borrower. The Borrower shall timely pay all Other Taxes to the relevant Governmental Authority in accordance with applicable lawLaw.
(c) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative Agent the original or a copy of a receipt issued by such Governmental Authority, if any, evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(d) Indemnification by the Loan Parties. The Loan Parties shall indemnify each Recipient, within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17) 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 the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, in each case contemporaneously with such demand, shall be conclusive absent demonstrable error.
(e) [Reserved].
(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as may permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
(ii) Without limiting the generality of the foregoing:
(A) any Lender that is a U.S. Lender shall, to the extent it is legally eligible to do so, deliver to the 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 the Borrower or the Administrative Agent), two properly completed and duly executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent 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 the Borrower or the Administrative Agent), two properly completed and duly executed copies of 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, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to such tax treaty;
(2) in the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, 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 D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and that no payment under any Loan Document is effectively connected with such Foreign Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Foreign Lender is not the beneficial owner (e.g., a partnership or a participating Lender), executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign Lender is a partnership (and not a participating Lender) 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 D-4 on behalf of such direct and indirect partner(s);
for purposes of furnishing the U.S. Tax Compliance Certificate as described in the foregoing clauses (3) and (4), if a Foreign Lender (or a foreign Participant) is a Disregarded Entity, the Foreign Lender shall submit such certificate based on the status of the Person that is treated for U.S. federal income tax purposes as being the sole owner of such Lender or Participant.
(C) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable lawLaw 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 lawLaw to permit the 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 Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the 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 the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine whether 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 purposes of this Section 2.17(f)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update such documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this Section 2.17(f).
(g) 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 pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Recipient and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Loan Party, upon the request of such Recipient, shall repay to such Recipient the amount paid over pursuant to this Section 2.17(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.17(g), in no event will the Recipient be required to pay any amount to any Loan Party pursuant to this Section 2.17(g) the payment of which would place the Recipient in a less favorable net after-Tax position than the 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 2.17(g) shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
(h) The Administrative Agent, and any successor or supplemental Administrative Agent, shall deliver to the Borrower (in such number of copies as shall be requested by the Borrower) on or prior to the date on which the Administrative Agent becomes the administrative agent hereunder or under any other Loan Document (and from time to time thereafter upon the reasonable request of the Borrower) properly completed and duly executed copies of either (i) if it is a U.S. Person, IRS Form W-9 (or any successor form) or (ii) if it is not a U.S. Person, a U.S. branch withholding certificate on IRS Form W-8IMY (or any successor form), together with the required accompanying documentation, evidencing its agreement with the Borrower to be treated as a U.S. Person (with respect to amounts received on account of any Lender) and IRS Form W-8ECI (with respect to amounts received on its own account), together with the required accompanying documentation with the effect that, in either case, the Borrower will be entitled to make payments hereunder to the Administrative Agent without withholding or deduction on account of U.S. federal withholding Tax. Notwithstanding any other provision of this Section 2.17(h), the Administrative Agent shall not be required to provide any documentation that the Administrative Agent is not legally eligible to provide as a result of a Change in Law.
(i) Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(j) Defined Terms. For the avoidance of doubt, for purposes of this Section 2.17, the term “Lender” includes any L/C Issuer and any Swingline Lender, and the term “Loan Document” includes any Letter of Credit. For purposes of this Section 2.17, the term “applicable lawLaw” includes FATCA.
SECTION 2.18. Payments Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of Setoffs.
(a) The Borrower shall make each payment or prepayment required to be made by it hereunder (whether of principal, interest or fees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments denominated in Dollars, 12:00 noon, New York City time and (ii) in the case of payments denominated in a Foreign Currency, 12:00 noon, New York City time, in the city of the Administrative Agent’s Office for such currency, in each case on the date when due or the date fixed for any prepayment hereunder, in immediately available funds, free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) in the same currency in which the applicable Borrowing was made (or where such currency has been converted to Euros, in Euros) and (ii) to the Administrative Agent at the Administrative Agent’s Office for such currency, except payments to be made directly to an L/C Issuer or a Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. Notwithstanding the foregoing provisions of this Section, if, after the making of any Borrowing in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Borrowing was made (the “Original Currency”) no longer exists or the Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all payments to be made by the Borrower hereunder in such currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrower takes all risks of the imposition of any such currency control or exchange regulations.
(b) At any time that payments are not required to be applied in the manner required by Section 7.03, if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
(c) [Reserved].
(d) If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Swingline Loans and accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Swingline Loans to any assignee or participant, other than to the Borrower (except for assignments of Term B Loans, Incremental Term B Loans and/or Permitted Refinancing Term Loans that are term B loans to the Borrower that are permitted under Section 9.04(f)) or any Subsidiary or Affiliate thereof (as to which (for the avoidance of doubt, other than assignments permitted under Section 9.04(f)) the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. For purposes of clause (b) of the definition of Excluded Taxes, a Lender that acquires a participation pursuant to this Section 2.18(d) shall be treated as having acquired an interest in such participation on the earlier date on which it acquired an interest in the Loan or Commitment, as applicable, to which such participation relates.
(e) Unless the Administrative Agent shall have received, prior to any date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuers pursuant to the terms of this Agreement or any other Loan Document (including any date that is fixed for prepayment by notice from the Borrower to the Administrative Agent pursuant to Section 2.11(b)), notice from the Borrower will not make such payment or prepayment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or L/C Issuers, as applicable, the amount due.
(f) With respect to any payment that the Administrative Agent makes for the account of the Lenders hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lender Recipient Parties severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender Recipient Party, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds 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 Lender Recipient Party with respect to any amount owing under this clause (f) shall be conclusive, absent manifest error.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the good-faith judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) If (i) any Lender (or any of its Participants) requests compensation under Section 2.15, (ii) the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender (or any of its Participants) or any Governmental Authority for the account of any Lender (or any of its Participants) pursuant to Section 2.17, (iii) any Lender becomes a Defaulting Lender, a Disqualified Institution or a Designated Person or invokes Section 2.27, (iv) any Revolving Lender shall reject a requested additional Alternative Currency, (v) the credit (or similar) rating of any Revolving Lender (or any Lender Parent thereof) by one or more of S&P or Moody’s or any other nationally recognized statistical rating organization shall at any time be lower than BBB/Baa2 (or the equivalent), (vi) any Revolving Lender (or any Lender Parent thereof) shall at any time have no credit (or similar) rating in effect by at least one such organization, (vii) as to any Lender (other than any Term B Lender), any Lender or its Lender Parent has become the subject of a Bail-In Action (or any case or other proceeding in which a Bail-In Action may occur), (viii) any Lender that is a Swingline Lender or an L/C Issuer shall (A) resign in its capacity as such, (B) fail to promptly approve the assignment of a Revolving Commitment that the Administrative Agent has approved as contemplated by clause (x) of the proviso below or (C) fail to promptly approve an Additional Lender that the Administrative Agent has approved in the case of any Incremental Facilities as contemplated by Section 2.20 or (ix) any Lender is an Ineligible Institution at the time it becomes a Lender or any Lender assigns or participates (or purports to assign or participate) all or any portion of its Loans and/or Commitments to an Ineligible Institution or a Disqualified Institution in violation of Section 9.04 without the written consent of the Borrower, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or 2.17) and obligations under this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (x) to the extent such consent would be required pursuant to Section 9.04(b), the Borrower shall have received the prior written consent of the Administrative Agent (and if a Revolving Commitment is being assigned, the L/C Issuers and the Swingline Lenders), which consent shall not unreasonably be withheld, delayed or conditioned, and (y) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts). Each party hereto agrees that (a) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided that any such documents shall be without recourse to or warranty by the parties thereto.
SECTION 2.20. Incremental Facilities.
(a) Request for increase. The Borrower may at any time or from time to time on and after the Closing Date, by notice to the Administrative Agent, request one or more (A) increases in the aggregate amount of Revolving Commitments (each such increase a “Incremental Revolving Commitment”, (B) increases of the principal amount of Incremental Term B Loans (each, a “Term B Loan Increase”), (C) an increase of the principal amount of Term A Loans (each, a “Term A Loan Increase”; each Term B Loan Increase and Term A Loan Increase, collectively, referred to as the “Term Loan Increases”), (D) one or more term A loan tranches (as determined by the Administrative Agent and the Borrower, taking into account maturity, amortization and applicable rates with respect thereto) to be made available to the Borrower (each, an “Incremental Term A Loan”) or (E) one or more term B loan tranches (as determined by the Administrative Agent and the Borrower, taking into account maturity, amortization and applicable rates with respect thereto) to be made available to the Borrower (each, an “Incremental Term B Loan”; each Incremental Term A Loan and Incremental Term B Loan, collectively, referred to as the “Incremental Term Loans”; each Incremental Term Loan, each Incremental Revolving Commitment and each Term Loan Increase, collectively, referred to as the “Incremental Facilities”); provided that:
(i) the principal amount for all such Incremental Facilities shall not exceed the Incremental Available Amount;
(ii) any such request for an Incremental Facility shall be in a minimum amount of $10,000,000 (or a lesser amount in the event such amount represents all remaining availability under this Section);
(iii) no Incremental Revolving Commitment shall (A) increase the L/C Commitment or the Aggregate Revolving Commitment without the consent of each L/C Issuer under the Revolving Credit Facility (or, if such increase applies only to certain L/C Issuers pursuant to their agreement, such L/C Issuers), (B) increase the L/C Commitment of any L/C Issuer without the consent of such L/C Issuer or (C) increase the Swingline Sublimit without the consent of the Swingline Lender;
(iv) no Incremental Term Loan shall mature earlier than the later of (A) the latest Term A Loan Maturity Date then in effect and (B) the latest Term B Loan Maturity Date or have a shorter weighted average life to maturity than the longest remaining weighted average life to maturity of the Term A Loan facility or the Term B Loan facility; provided that at the option of Borrower, this clause (iv) shall not apply to any Permitted Bridge Indebtedness;
(v) [reserved];
(vi) each Incremental Term Loan shall be pari passu in right of payment, voting, security and/or (unless agreed to be paid after, or on a less than pro rata basis with, the Term Loans by the Lenders providing such Incremental Term Loan) prepayment with the Term Loans, including sharing in mandatory prepayments under Section 2.11(f) pro rata (or less than pro rata, if agreed by the Lenders providing such Incremental Term Loan) with the Term Loans;
(vii) each Term A Loan Increase, Term B Loan Increase, each Incremental Term A Loan and each Incremental Term B Loan shall have an All-in Yield as determined by the Lenders providing such Incremental Facility and the Borrower; provided that, if the All-in Yield in respect of such Incremental Facility exceeds the All-in Yield then in effect for the Term B Loans (or, if applicable, any prior Incremental Term B Loan), by more than 50 basis points, then the Applicable Rate for the Term B Loans (and any prior Incremental Term B Loan, if applicable) shall be increased so that the All-in Yield in respect of the Term B Loans (and any prior Incremental Term B Loans, if applicable) is equal to the All-in Yield for such Incremental Facility minus 0.50%; provided that to the extent that any such differential in the All-in Yield arises out of a higher Term SOFR “floor” on such Incremental Facility, the Term SOFR “floor” for the Term B Loans (and any prior Incremental Term B Loan, if applicable) rather than the Applicable Rate shall be increased accordingly;
(viii) except as provided above and in Section 2.20(d), all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the applicable Term Loan facility, shall be reasonably satisfactory to the Administrative Agent, the applicable Lenders providing such Incremental Term Loan and the Borrower; and
(ix) each Incremental Facility shall constitute Obligations hereunder and shall (i) be guaranteed pursuant to the Guaranty and, if secured, secured pursuant the Collateral Documents on a pari passu basis with the other Obligations hereunder or secured on a junior basis with the other Obligations hereunder, (ii) not have guarantees from any Person that is not a Loan Party and (iii) if secured, not be secured by assets other than the Collateral, provided that during an Investment Grade Period any Incremental Facility shall be unsecured.
(b) Process for Increase. Incremental Facilities may be (but shall not be required to be) provided by any existing Lender, in each case on terms permitted in this Section 2.20 and otherwise on terms reasonably acceptable to the Borrower and the Administrative Agent, or by any Additional Lender pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent; provided that:
(i) the Administrative Agent shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to each proposed Additional Lender providing such Incremental Facility to the extent the Administrative Agent would be required to consent to an assignment to such Additional Lender pursuant to Section 9.04(b)(i)(B), and
(ii) in the case of any Incremental Revolving Commitment, each L/C Issuer under the Revolving Credit Facility and the Swingline Lender shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to each such Lender or proposed Additional Lender providing such Incremental Revolving Commitment if such consent by the L/C Issuers or the Swingline Lender, as the case may be, would be required under Section 9.04(b)(i) for an assignment of Revolving Loans or Revolving Commitments to such Lender or proposed Additional Lender.
No Lender shall have any obligation to increase its Revolving Commitment, increase its Term B Loan Commitment, Term B Loans, Term A Loan Commitment or Term A Loans, or participate in any Incremental Term Loan, as the case may be (and any existing Lender that fails to respond to any request for an increase or an incremental loan within the requested time shall be deemed to have declined to provide any such increase or incremental loan), and no consent of any Lender, other than the Lenders agreeing to provide any portion of an Incremental Facility, shall be required to effectuate such Incremental Facility.
(c) Effective Date and Allocations. The Administrative Agent and the Borrower shall determine the effective date of any Incremental Facility (the “Increase Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such Incremental Facility and the Increase Effective Date.
(d) Conditions to Effectiveness of Increase.
(i) As a condition precedent to each Incremental Facility, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower and, if reasonably determined by the Administrative Agent to be necessary or desirable under applicable Law with respect to the Guaranty of a Guarantor, of each such Guarantor, dated as of the Increase Effective Date, signed by a Responsible Officer of the Borrower or Guarantor and (i) certifying and attaching the resolutions adopted by the Borrower or Guarantor approving or consenting to such Incremental Facility (which, with respect to any such Loan Party, may, if applicable, be the resolutions entered into by such Loan Party in connection with the incurrence of the Obligations on the Closing Date) and (ii) certifying that, before and upon giving effect to such increase (and assuming that the full amount of the commitments of such Incremental Facility is fully drawn),
(A) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date, and except that for purposes of this Section 2.20, the representations and warranties contained Section 3.06(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Section 5.12(b) or (c), respectively; provided that in the case of any Incremental Term Loan or Term Loan Increase the proceeds of which are to be used to finance a Limited Condition Transaction permitted hereunder, to the extent agreed by the Lenders providing such Incremental Term Loan or Term Loan Increase, the representations and warranties the accuracy of which are a condition to the funding of such Incremental Term Loan or Term Loan Increase may be limited, at the option of the Borrower, to (1) customary specified representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Term Loan or Term Loan Increase), and (2) those representations of the acquired company in the applicable acquisition agreement that are material to the interests of the lenders under the Incremental Term Loan or Term Loan Increase and if breached would give the Borrower or its Affiliate the right to terminate or refuse to close under the applicable acquisition agreement, provided that in such a case, on the LCT Determination Date for such Limited Condition Transaction, and as a condition to the entering into of the definitive documentation for or the delivery of irrevocable notice of the applicable redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt, the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the LCT Determination Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date.
(B) no Default or Event of Default shall exist and be continuing; provided that in the case of any Incremental Term Loan or Term Loan Increase the proceeds of which are to be used to finance a Limited Condition Transaction permitted hereunder, to the extent requested by the Borrower and agreed by the lenders providing such Incremental Term Loan or Term Loan Increase, (1) at the LCT Determination Date, no Default or Event of Default shall have occurred and be continuing or shall occur as a result thereof and (2) on the Increase Effective Date, no Specified Default shall have occurred and be continuing or shall occur as a result of incurrence of such Incremental Facility;
(C) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance, upon giving effect to the incurrence of any such Incremental Facility (assuming that such Incremental Facility is fully drawn) with the Financial Covenants; provided that in the case of any Incremental Facility the proceeds of which are to be used to finance a Limited Condition Transaction, if the Borrower so requests, to the extent agreed by the Lenders providing such Incremental Term Loan or Term Loan Increase, such compliance may be measured at the LCT Determination Date (and Section 1.04(c) shall then apply); and
(ii) To the extent that any Incremental Facility shall take the form of an Incremental Term A Loan, this Agreement shall be amended (without the need to obtain the consent of any Lender or any L/C Issuer other than the Lenders providing such Incremental Term Loans), in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to include such terms as are customary for a term loan commitment, including mandatory prepayments, assignments and voting provisions; provided that the covenants, defaults and similar non-economic provisions applicable to any Incremental Term A Loan, taken as a whole, (1) shall not be materially more restrictive than the corresponding terms set forth in the then‑existing Loan Documents, taken as a whole, without the express written consent of the Administrative Agent, except to the extent (x) necessary to provide for additional or different covenants or other terms applicable only during the period after the Latest Maturity Date of each other then‑existing Loan, (y) such terms are added in the Loan Documents for the benefit of the Lenders pursuant to an amendment hereto or thereto subject solely to the reasonable satisfaction of the Administrative Agent, or (z) otherwise reasonably acceptable to the Administrative Agent and (2) shall not contravene any of the terms of the then existing Loan Documents; provided that the documentation governing any Incremental Term A Loans may include a financial maintenance covenant, it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term A Loan, no consent shall be required from the Administrative Agent or any of the existing Lenders to the extent that such financial maintenance covenant is (x) also added for the benefit of any existing Loans (other than the Term B Loans and any Incremental Term B Loans to the extent not otherwise subject to any financial maintenance covenant at such time) or (y) only applicable after the Latest Maturity Date in effect immediately prior to giving effect to such Incremental Term A Loan. A certificate of the Borrower as to the satisfaction of the conditions described in this clause (ii) delivered at least five (5) Business Days prior (or such shorter period of time as the Administrative Agent may agree) to the incurrence of such Debt, together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (ii), shall be conclusive unless the Administrative Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees).
(iii) To the extent that any Incremental Facility shall take the form of an Incremental Term B Loan, this Agreement shall be amended (without the need to obtain the consent of any Lender or any L/C Issuer other than the Lenders providing such Incremental Term Loans), in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to include such terms as are customary for a term loan commitment, including mandatory prepayments, assignments and voting provisions; provided that the covenants, defaults and similar non-economic provisions applicable to any Incremental Term B Loan, taken as a whole, (1) shall not be materially more restrictive than the corresponding terms set forth in the then‑existing Loan Documents, taken as a whole, without the express written consent of the Administrative Agent, except to the extent (x) necessary to provide for additional or different covenants or other terms applicable only during the period after the Latest Maturity Date of each other then‑existing Loan, (y) such terms are added in the Loan Documents for the benefit of the Lenders pursuant to an amendment hereto or thereto subject solely to the reasonable satisfaction of the Administrative Agent, or (z) otherwise reasonably acceptable to the Administrative Agent and (2) shall not contravene any of the terms of the then existing Loan Documents. A certificate of the Borrower as to the satisfaction of the conditions described in this clause (iii) delivered at least five (5) Business Days (or such shorter period of time as the Administrative Agent may agree) prior to the incurrence of such Debt, together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (iii), shall be conclusive unless the Administrative Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees).
(iv) Each Incremental Revolving Commitment shall have the same terms as the outstanding Revolving Loans and be part of the existing revolving credit facilities hereunder (it being understood that, if required to consummate an Incremental Revolving Commitment, the pricing, interest margin, rate floors and commitment fees shall be increased so long as such increases apply to the entire Revolving Credit Facility (provided additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Commitment without any requirement to pay such amounts to Lenders holding existing Revolving Commitments)). Upon the establishment of each Incremental Revolving Commitment (x) each Lender having a Revolving Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each, a “Incremental Revolving Commitment Lender”) in respect of such increase, and each such Incremental Revolving Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit under the Revolving Credit Facility and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in such Letters of Credit and (ii) participations hereunder in Swingline Loans, will, in each case, equal each Revolving Lender’s Applicable Percentage (after giving effect to such increase in the Revolving Credit Facility) and (y) if, on the date of such increase there are any Revolving Loans outstanding, the Lenders shall make such payments among themselves as the Administrative Agent may reasonably request to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Applicable Percentages arising from such Incremental Revolving Commitment, and the Borrower shall pay to the applicable Lenders any amounts required to be paid pursuant to Section 2.16 in connection with such payments among the Lenders as if such payments were effected by prepayments of Revolving Loans.
(v) Each Term Loan Increase may be part of the existing Term A Loan facility or the existing Incremental Term B Loan facility, as applicable, and shall have the same terms (except for pricing, including interest rate margins, upfront fees and original issue discount, which in the event of a Term B Loan Increase shall be subject to the pricing limitations set forth in Section 2.20(a)) as the outstanding Term A Loans or Incremental Term B Loans, as applicable; provided that, as of the Increase Effective Date with respect to any Term Loan Increase, the amortization schedule set forth in Section 2.10(b)(i) or (b)(ii), as applicable, shall be amended to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Term Loans being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date. Such amendment may be signed by the Administrative Agent on behalf of the Lenders.
(e) The Incremental Facilities shall be documented by an amendment or amendment and restatement of this Agreement (each, an “Incremental Amendment”) executed by the Administrative Agent, the Loan Parties and the Persons providing the Incremental Facilities (but no other existing Lender), and the Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(f) This Section 2.20 shall supersede any provisions in Section 2.18(d) or Section 9.02 to the contrary.
SECTION 2.21. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agent’s main New York City office on the Business Day preceding that on which final, non‑appealable judgment is given. The obligations of the Borrower in respect of any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Lender or the Administrative Agent, as the case may be, in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Lender or the Administrative Agent, as the case may be, in the specified currency and (b) any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under Section 2.18, such Lender or the Administrative Agent, as the case may be, agrees to remit such excess to the Borrower.
SECTION 2.22. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 7.03 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be reasonably determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to an L/C Issuer and/or a Swingline Lender hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, 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; fifth, to the payment of any amounts owing to the Lenders, the L/C Issuers or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, L/C Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; and seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.02 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 and funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto;
(c) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Required Financial Covenant Lenders, the Required Revolving Lenders, or the Required Term A Lenders or the Required Term B Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders directly affected thereby shall not, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(d) if any Swingline Exposure exists or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure of such Defaulting Lender (other than, in the case of a Defaulting Lender that is a Swingline Lender, the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) and L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and L/C Obligations do not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, either (A) procure the reduction or termination of the Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) or (B) Cash Collateralize for the benefit of the L/C Issuers only the Borrower’s obligations corresponding to such Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(o) for so long as such L/C Obligations are outstanding;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.06 with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are Cash Collateralized;
(iv) to the extent that the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the Letter of Credit Fees payable to the Lenders pursuant to Section 2.06(j) shall to the same extent be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations is not reallocated, reduced, terminated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any L/C Issuer or any other Lender hereunder, all Letter of Credit Fees payable under Section 2.06(j) with respect to such Defaulting Lender’s L/C Obligations shall be payable to the L/C Issuers until and to the extent that such L/C Obligations are reallocated, reduced, terminated and/or Cash Collateralized; and
(e) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no L/C Issuer shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or prepaid, reduced, terminated and/or Cash Collateralized in accordance with Section 2.22(d), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(d)(i) (and such Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) an L/C Issuer or a Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no L/C Issuer shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lenders or the L/C Issuers, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lenders or the L/C Issuers, as the case may be, to defease any risk to the Swingline Lenders or the L/C Issuers in respect of such Lender hereunder relating to Swingline Exposure and/or L/C Obligations.
In the event that the Administrative Agent, the Borrower, the Swingline Lenders and the L/C Issuers agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
SECTION 2.23. Extension of Maturity Date.
(a) Requests for Extension. The Borrower may, by notice to the Administrative Agent (who shall promptly notify the applicable Class of Lenders) at any time, request that each applicable Lender extend such Lender’s Revolving Credit Maturity Date, or Term A Loan Maturity Date or Term B Loan Maturity Date, as the case may be (the “Applicable Maturity Date”), to a date (the “Extended Maturity Date” and the date on which such extension becomes effective (which date shall be not less than 30 days after the date of such extension notice (or such longer or shorter periods as the Administrative Agent shall agree in its reasonable discretion upon request by the Borrower)), the “Extension Date”) that is after the Applicable Maturity Date then in effect with respect to such Class for such Lender. For the avoidance of doubt, the Borrower may request extensions of any Class without requesting an extension of the other Class.
(b) Lender Elections to Extend. Each Lender of the applicable Class, acting in its sole and individual discretion, shall, by notice to the Administrative Agent (which shall be irrevocable unless the Borrower otherwise consents in writing in its sole discretion) given not later than the date that is 15 days after the date on which the Administrative Agent received the Borrower’s extension request (the “Lender Notice Date”), advise the Administrative Agent whether or not such Lender agrees to such extension (each Lender of the applicable Class that determines to so extend its Applicable Maturity Date, an “Extending Lender”). Each Lender of the applicable Class that determines not to so extend its Applicable Maturity Date (a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but in any event no later than the Lender Notice Date), and any Lender of the applicable Class that does not so advise the Administrative Agent on or before the Lender Notice Date shall be deemed to be a Non-Extending Lender. The election of any Lender to agree to such extension shall not obligate any other Lender to so agree, and it is understood and agreed that no Lender shall have any obligation whatsoever to agree to any request made by the Borrower for extension of the Applicable Maturity Date.
(c) Notification by Administrative Agent. The Administrative Agent shall notify the Borrower of each applicable Lender’s determination under this Section promptly after the Administrative Agent’s receipt thereof and, in any event, no later than the date that is 15 days prior to the applicable proposed Extension Date (or, if such date is not a Business Day, on the next preceding Business Day).
(d) Additional Commitment Lenders. The Borrower shall have the right, but shall not be obligated, on or before the Applicable Maturity Date for any Non-Extending Lender to replace such Non-Extending Lender with, and add as a “Revolving Lender” (in the case of any extension of the Revolving Credit Maturity Date), as a “Term A Lender” (in the case of any extension of the Term A Loan Maturity Date) or as a “Term B Lender” (in the case of any extension of the Term B Loan Maturity Date) under this Agreement in place thereof, one or more financial institutions that are not Ineligible Institutions (each, an “Additional Commitment Lender”) approved by the Administrative Agent (in each case, such approval not to be unreasonably withheld, conditioned or delayed) in accordance with the procedures provided in Section 2.19(b), each of which applicable Additional Commitment Lenders shall have entered into an Assignment and Assumption (in accordance with and subject to the restrictions contained in Section 9.04, with the Borrower or replacement Lender obligated to pay any applicable processing or recordation fee) with such Non-Extending Lender, pursuant to which such Additional Commitment Lenders shall, effective on or before the Applicable Maturity Date for such Non-Extending Lender, assume a Revolving Commitment, Term A Loans and/or Term BA Loans, as the case may be (and, if any such Additional Commitment Lender is already a Lender of the applicable Class, its Revolving Commitment and/or its outstanding Term A Loans and/or Term B Loans, as applicable, so assumed shall be in addition to such Lender’s Revolving Commitment and/or its outstanding Term A Loans and/or Term B Loans, as applicable, hereunder on such date). Prior to any Non-Extending Lender being replaced by one or more Additional Commitment Lenders pursuant hereto, such Non-Extending Lender may elect, in its sole discretion, by giving irrevocable notice thereof to the Administrative Agent and the Borrower (which notice shall set forth such Lender’s new Applicable Maturity Date), to become an Extending Lender; provided that the Borrower consents thereto in writing in its sole discretion. The Administrative Agent may effect such amendments to this Agreement as are reasonably necessary to provide for any such extensions with the consent of the Borrower but without the consent of any other Lenders.
(e) Minimum Extension Requirement. If (and only if) the total of the applicable Revolving Commitments or the applicable outstanding Term Loans of the Lenders of the applicable Class that have agreed to extend their Applicable Maturity Date and the new or increased Revolving Commitments or the applicable newly assumed outstanding Term Loans of the applicable Class of any Additional Commitment Lenders is more than 50% of the aggregate amount of the Revolving Commitments or the applicable outstanding Term Loans, as applicable, in effect immediately prior to the applicable Extension Date, then, effective as of the applicable Extension Date, the Applicable Maturity Date of each Extending Lender and of each Additional Commitment Lender of the applicable Class shall be extended to the Extended Maturity Date (except that, if such date is not a Business Day, such Applicable Maturity Date as so extended shall be the next preceding Business Day) and each Additional Commitment Lender of such Class shall thereupon become a “Revolving Lender”, or a “Term A Lender” or a “Term B Lender”, as the case may be, for all purposes of this Agreement and shall be bound by the provisions of this Agreement as a Revolving Lender, Term A Lender and/or Term BA Lender, as the case may be, hereunder and shall have the obligations of a Revolving Lender, Term A Lender and/or Term BA Lender, as the case may be, hereunder.
(f) Conditions to Effectiveness of Extension. Notwithstanding the foregoing, any extension of any Maturity Date pursuant to this Section 2.23 shall not be effective with respect to any Extending Lender and each Additional Commitment Lender unless:
(i) no Default or Event of Default shall have occurred and be continuing on the applicable Extension Date and immediately after giving effect thereto;
(ii) the representations and warranties of the Loan Parties set forth in this Agreement shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the applicable Extension Date and immediately after giving effect thereto, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and
(iii) the Administrative Agent shall have received a certificate from the Borrower signed by a Financial Officer of the Borrower (A) certifying the accuracy of the foregoing clauses (i) and (ii) and (B) certifying and attaching the resolutions adopted by the Borrower and the Borrower approving or consenting to such extension (or to the extent the resolutions delivered on the Closing Date approve such matters, a certification from the Borrower and the Borrower that the resolutions delivered on the Closing Date remain in full force and effect and have not been amended or otherwise modified since the adoption thereof).
(g) Maturity Date for Non-Extending Lenders. On the Applicable Maturity Date of each Non-Extending Lender, (i) to the extent of the Revolving Commitments and Term Loans of each Non-Extending Lender of the relevant Class not assigned to the Additional Commitment Lenders of such Class, the Revolving Commitment of each Non-Extending Lender of such Class shall automatically terminate and (ii) the Borrower shall repay such Non-Extending Lender of such Class in accordance with Section 2.10 (and shall pay to such Non-Extending Lender all of the other Obligations due and owing to it under this Agreement) and after giving effect thereto shall prepay any Loans of the applicable Class outstanding on such date (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep outstanding Loans of the applicable Class ratable with any revised Applicable Percentages of the respective Lenders of such Class effective as of such date, and the Administrative Agent shall administer any necessary reallocation of the applicable Credit Exposures (without regard to any minimum borrowing, pro rata borrowing and/or pro rata payment requirements contained elsewhere in this Agreement).
(h) Conflicting Provisions. This Section shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
SECTION 2.24. Permitted Refinancing Amendment.
(a) Permitted Refinancing Amendment. At any time after the Closing Date, the Borrower may obtain, from any Lender or any Permitted Refinancing Lender, Permitted Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Loans or Commitments then outstanding under this Agreement, in the form of Permitted Refinancing Loans or Permitted Refinancing Commitments, in each case pursuant to a Permitted Refinancing Amendment; provided, notwithstanding anything to the contrary in this Section 2.24 or otherwise (i) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Permitted Refinancing Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Permitted Refinancing Revolving Commitments and (C) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (iii) below)) of Loans with respect to Permitted Refinancing Revolving Commitments after the date of obtaining any Permitted Refinancing Revolving Commitments shall be made on a pro rata basis with all Revolving Commitments outstanding at such time, (ii) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Commitments, (iii) assignments and participations of Permitted Refinancing Revolving Commitments and Permitted Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans and (iv) the Permitted Refinancing Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Permitted Refinancing Amendment.
(b) Terms, Etc. The terms, provisions and documentation of any Permitted Refinancing Loans and Permitted Refinancing Commitments shall be subject to the limitations set forth in the definition of “Permitted Refinancing”.
(c) Minimum Amounts. Each issuance of Permitted Credit Agreement Refinancing Indebtedness under Section 2.24(a) shall be in an aggregate principal amount that is not less than $10,000,000, and an integral multiple of $1,000,000 in excess thereof.
(d) Conditions Precedent. The effectiveness of any Permitted Refinancing Amendment shall be subject to the satisfaction or waiver on the date thereof of each of the conditions set forth in Section 4.02 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01, (ii) customary legal opinions reasonably acceptable to the Administrative Agent and (iii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Permitted Credit Agreement Refinancing Indebtedness is provided with the benefit of the applicable Loan Documents.
(e) Effectiveness. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Permitted Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Permitted Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Permitted Refinancing Loans and/or Permitted Refinancing Commitments).
(f) Necessary Amendments. Any Permitted Refinancing Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.24 and each of the parties hereto hereby consents to the transactions contemplated by this Section 2.24 (including, for the avoidance of doubt, payment of interest, fees or premium in respect of any Permitted Credit Agreement Refinancing Indebtedness on such terms as may be set forth in the relevant Permitted Refinancing Amendment in accordance with this Section 2.24).
(g) Conflicting Provisions. This Section 2.24 shall supersede any provisions in Section 2.18 or 9.02 to the contrary.
SECTION 2.25. Designated Lenders. Each of the Administrative Agent, each L/C Issuer, each Swingline Lender and each Lender at its option may make any Loan or otherwise perform its obligations hereunder through any lending office and each Term A Lender and each Revolving Lender may make any Revolving Loan, Term A Loan or otherwise perform its obligations hereunder in relation to the Revolving Credit Facility and Term A Loans through a domestic or foreign branch office or Affiliate of such Term A Lender or Revolving Lender, as applicable (such lending office, domestic or foreign branch office of Affiliate, a “Designated Lender”); provided that any exercise of such option shall not affect the obligation of the Borrower to repay any Borrowing in accordance with the terms of this Agreement. Any Designated Lender who has funded any Borrowing shall be considered a Lender; provided that designation of a Designated Lender is for administrative convenience only and does not expand the scope of liabilities or obligations of any Lender or Designated Lender beyond those of the Lender designating such Person as a Designated Lender as provided in this Agreement.
SECTION 2.26. [Reserved].
SECTION 2.27. Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to a Relevant Rate, or to determine or charge interest rates based upon a Relevant Rate or to purchase or sell, or to take deposits of, any Alternative Currency in the applicable interbank market, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), (a) any obligation of such Lender to make or maintain Alternative Currency Loans in the affected currency or currencies or, in the case of Loans denominated in Dollars, to make or maintain Term SOFR Loans (or, following the replacement of Term SOFR with Daily SOFR, as set forth in Section 2.14(b), Daily SOFR Loans) or to convert ABR Loans to Term SOFR Loans (or, following the replacement of Term SOFR with Daily SOFR, as set forth in Section 2.14(b), Daily SOFR Loans) shall be, in each case, suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference to the Term SOFR component of the Alternate Base Rate, the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist, at which time such Lender shall promptly notify the Administrative Agent and the Borrower, and such Lender’s obligation to make such Loans shall be reinstated. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), either prepay all Term SOFR Loans (or, following the replacement of Term SOFR with Daily SOFR, as set forth in Section 2.14(b), Daily SOFR Loans) or Alternative Currency Loans of such Lender, as applicable, in the affected currency or currencies or, if applicable and such Loans are denominated in Dollars, convert (x) all Term SOFR Loans (or, following the replacement of Term SOFR with Daily SOFR, as set forth in Section 2.14(b), Daily SOFR Loans) of such Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Alternate Base Rate), or (y) all Alternative Currency Loans of such Lender, as applicable, in the affected currency or currencies to ABR Loans denominated in Dollars in the Dollar Amount of such outstanding Alternative Currency Loan, in each case, immediately, or, in the case of Term SOFR Loans or Alternative Currency Term Rate Loans, on the last day of the Interest Period therefor if such Lender may lawfully continue to maintain such Loans to such day or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Loan and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Term SOFR 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 SOFR, at which time such Lender shall promptly notify the Administrative Agent and the Borrower, and the Administrative Agent shall return to computing interest rates based upon Term SOFR for such Lender. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.16. If the obligation of any Lender to make or maintain any Loans has been terminated or suspended pursuant to the provisions of this Section, the Borrower may elect, by giving notice to such Lender through the Administrative Agent, that all Loans which would otherwise be made or maintained by such Lender based upon SOFR, as applicable, instead be made or maintained as ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Alternate Base Rate) made to or maintained for, as applicable, the Borrower.
ARTICLE III
Representations and Warranties
The Loan Parties represent and warrant as of the Closing Date (and as of each date as and to the extent required under Section 4.02) to the Administrative Agent and the Lenders that:
SECTION 3.01. Existence, Qualification and Power. Each Loan Party (a) is a legal entity duly organized, validly existing and in good standing (as applicable) under the laws of the jurisdiction of its organization, (b) is duly qualified in every jurisdiction in which such qualification is required and (c) has all requisite power and authority (including, without limitation, all material Governmental Authorizations, which Governmental Authorizations are current and valid) to (i) execute, deliver and perform its obligations under the Loan Documents to which it is a party and consummate the transactions contemplated herein and therein and (ii) own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except in the case of clauses (b) and (c)(ii) where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.02. Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party, and the consummation of the transactions contemplated thereby, are within such Loan Party’s corporate (or other) powers, have been duly authorized by all necessary corporate (or other) action, and do not (a) contravene such Loan Party’s Organization Documents, (b) violate any law, rule, regulation (including, without limitation, Regulation X of the Board), order, writ, judgment, injunction, decree, determination or award, the violation of which could reasonably be expected to have a Material Adverse Effect, (c) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any material contract, loan agreement, indenture, or other instrument binding on or affecting any Loan Party, any of its Restricted Subsidiaries or any of their properties the effect of which could reasonably be expected to result in a Material Adverse Effect, or (d) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Restricted Subsidiaries (other than any Lien created pursuant to the Loan Documents or Permitted Liens on Collateral which secure pari passu Indebtedness permitted hereunder). No Loan Party or any of its Restricted Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, or other instrument, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.
SECTION 3.03. Governmental Authorization; Other Consents. No Governmental Authorization, and no notice to or filing with, any Governmental Authority is required to be made or obtained by any Loan Party for the due execution, delivery or performance by, or enforcement against, any Loan Party of any Loan Document to which it is a party, except (a) those that have been obtained and remain in effect and disclosure filings that are required to be made with the SEC in connection with the transactions contemplated by the Loan Documents and (b) for filings necessary to perfect Liens created pursuant to the Loan Documents.
SECTION 3.04. Binding Effect. This Agreement has been, and each other Loan Document when delivered will have been, duly executed and delivered by each Loan Party. This Agreement is, and each other Loan Document when delivered will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally, and subject to the effects of general principles of equity (regardless whether considered in a proceeding in equity or at law).
SECTION 3.05. Litigation. There is no action, suit, investigation, litigation or proceeding against any Loan Party or any of its Restricted Subsidiaries pending or, to the knowledge of a Responsible Officer of the Borrower, threatened in writing before any Governmental Authority or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.
SECTION 3.06. Financial Statements; No Material Adverse Effect.
(a) The Borrower has heretofore furnished to the Administrative Agent and the Lenders the Audited Financial Statements. Such financial statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) fairly present, in all material respects, the financial condition of the Borrower and its Subsidiaries as of the dates thereof and their results of operations and cash flows for the period covered thereby.
(b) The Borrower has heretofore furnished to the Administrative Agent and the Lenders the Unaudited Financial Statements. The Unaudited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the dates thereof and their results of operations and cash flows for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of the most recent Audited Financial Statements, there has been no change in the operations, business, assets, properties or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, that has had a Material Adverse Effect.
SECTION 3.07. Disclosure. No written information, exhibit or report (other than forward looking statements, projections or information of a general economic nature) furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents (as modified or supplemented by other information so furnished from time to time, including updates reflected in SEC filings), taken as a whole, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not materially misleading (when taken as a whole), in each case, as of the date stated therein; provided that with respect to projected financial information, the Loan Parties represent only that such information was proposed in good faith based upon assumptions believed to be reasonable at the time, it being understood that projections are subject to uncertainties and contingencies beyond the control of the Loan Parties and their Subsidiaries and that no assurances can be given that such projections will be realized. As of the Closing Date, the information included in each Beneficial Ownership Certification, if applicable, is true and correct in all material respects.
SECTION 3.08. Margin Regulations. Neither the Borrower nor any of its Subsidiaries are engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Borrowing will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, in each case, in violation of Regulation U.
SECTION 3.09. Investment Company Act. No Loan Party is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.
SECTION 3.10. Solvency. Immediately before and upon giving effect to the Transactions on the Closing Date and the making of each Loan on the Closing Date and the application of the proceeds of such Loans on the Closing Date, Borrower is, together with its Restricted Subsidiaries, Solvent.
SECTION 3.11. ERISA Compliance.
(a) Except as could not reasonably be expected to result in a Material Adverse Effect, the Borrower and each ERISA Affiliate have complied with their obligations under the Pension Funding Rules with respect to each Plan subject to Pension Funding Rules, and no application for a funding waiver or an extension of any amortization period pursuant to Pension Funding Rules has been made with respect to any Plan.
(b) There are no pending or, to the knowledge of a Responsible Officer of the Borrower, threatened (in writing) claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event or Foreign Plan Event likely to result in a material liability for any Loan Party has occurred or is reasonably expected to occur; (ii) no Plan has any Unfunded Pension Liability that could reasonably be expected to result in a Material Adverse Effect; (iii) none of the Borrower or any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (iv) none of the Borrower or any ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA; and (v) no Plan has been terminated by the plan administrator thereof pursuant to Section 4041(c) of ERISA.
SECTION 3.12. Environmental Compliance. There are no facts, circumstances or conditions in any way relating to the past or present business or operations of the Borrower and its Restricted Subsidiaries or, to the knowledge of a Responsible Officer of the Borrower, any of their respective predecessors (including with respect to the Release of any wastes, Hazardous Materials or other materials), or to any past or present property of the Borrower or any of its Restricted Subsidiaries, that could reasonably be expected to give rise to any, or that have given rise to any, Environmental Liability or to any claim, proceeding or other liability under or relating to any Environmental Law, except, in each case, as would not reasonably be expected to have a Material Adverse Effect.
SECTION 3.13. Taxes. Except for failures that would not, individually or in the aggregate, have a Material Adverse Effect, each Loan Party and each of its Restricted Subsidiaries (a) has timely filed all Tax returns that were required to have been filed by it, taking into account any valid extension thereof and (b) has paid all Taxes that were required to have been paid by it (including in its capacity as a withholding agent) to the extent due and payable, except, in each case, for any such Tax that is currently being contested in good faith by appropriate action and for which adequate reserves have been established in accordance with GAAP.
SECTION 3.14. Use of Proceeds.
(a) All proceeds of the Term Loans made on the Closing Date will be used only to finance the Special Payment and to pay fees and expenses in connection with the Transactions.
(b) All proceeds of the Revolving Loans and the Swingline Loans will be used only to finance the Special Payment, for working capital and general corporate purposes of the Borrower and its Subsidiaries and to pay fees and expenses in connection with the Transactions; provided that the amount of Revolving Loans drawn on the Closing Date shall not exceed $75,000,000. All Letters of Credit will be issued only to support working capital and general corporate purposes of the Borrower and its Subsidiaries.
SECTION 3.15. Anti-Corruption Laws; Anti-Money Laundering Laws; Anti-Terrorism Laws; OFAC.
(a) The Borrower has implemented and maintains in effect policies and procedures reasonably designed to promote and achieve compliance by itself and its Restricted Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions Laws and Regulations in all material respects.
(b) The Borrower and each Restricted Subsidiary thereof, their respective officers and employees, and, to the knowledge of an executive officer of the Borrower, their respective directors and agents acting or directly benefiting in any capacity in connection with any credit facility under this Agreement are in compliance in all material respects with applicable Anti-Corruption Laws, applicable Anti-Money Laundering Laws, applicable Sanctions Laws and Regulations.
(c) None of the Borrower or any Restricted Subsidiary thereof nor, to the knowledge of an executive officer of the Borrower, their respective directors, officers, employees or agents acting or directly benefiting in any capacity in connection with any credit facility under this Agreement is a Designated Person (other than any Person domiciled, organized or resident in any Sanctioned Country or the Government of Venezuela not in violation of Sanctions Laws and Regulations or any other Person 50% or more owned or controlled, directly or indirectly, by such Person).
SECTION 3.16. Affected Financial Institutions. No Loan Party is an Affected Financial Institution.
SECTION 3.17. Security Interest in Collateral. The provisions of this Agreement and the other Loan Documents create legal and valid perfected Liens on all the Collateral to the extent required thereby in favor of the Administrative Agent, for the benefit of the Secured Parties, and such Liens constitute perfected and continuing Liens on the Collateral to the extent required thereby, securing the Secured Obligations, enforceable against the applicable Loan Party and all third parties, and having priority over all other Liens on the Collateral to the extent required thereby except in the case of (a) Permitted Liens and (b) Liens perfected only by possession (including possession of any certificate of title) to the extent the Administrative Agent is not required to have possession pursuant to the Loan Documents and has not obtained or does not maintain possession of such Collateral.
ARTICLE IV
Conditions
SECTION 4.01. Closing Date. The effectiveness of this Agreement and the initial extension of credit hereunder on the Closing Date is subject to satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(a) Executed Counterparts. The Administrative Agent (or its counsel) shall have received:
(i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) Counterpart, duly executed by each party thereto, of (A) the Security Agreement, (B) each required Intellectual Property Security Agreement (as defined in the Security Agreement) and (C) the Perfection Certificate;
(iii) duly executed copies of the other Loan Documents to the extent required to be executed on or prior to the Closing Date and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the effectiveness of this Agreement, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit B.
(b) Opinion of Counsel to the Loan Parties. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders as of the Closing Date and dated as of the Closing Date) of Foley & Lardner LLP, special counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Parties, this Agreement and the Transactions as the Administrative Agent shall reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(c) Organizational Documents. The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing (as applicable) of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents (to the extent required to be executed on or prior to the Closing Date) or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel and set forth on Exhibit B hereto.
(d) Registration Statement. The Administrative Agent shall have received the Registration Statement, and all amendments, supplements and modifications thereto from time to time, filed with the SEC with respect to the Spin-Off, including audited combined carve-out financial statements of the Borrower that satisfy the rules and requirements of the SEC (the “Audited Financial Statements”) and are otherwise reasonably satisfactory to the Administrative Agent.
(e) Third Party Debt. On the Closing Date, immediately after giving effect to the Transactions, neither the Borrower nor any of its Restricted Subsidiaries shall have any third party Debt other than any such Debt permitted by this Agreement to remain outstanding on the Closing Date.
(f) Closing Date Transactions. The Transactions shall have been consummated on the Closing Date or shall be consummated substantially concurrently with the funding of the Term Loans on the Closing Date.
(g) Officer’s Certificate. The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in Sections 4.01(e), 4.01(f), 4.02(a) and 4.02(b). The Administrative Agent shall be entitled to conclusively rely on such certificate in making a determination of the satisfaction of the conditions set forth in Sections 4.01(e), 4.01(f), 4.02(a) and 4.02(b).
(h) Fees and Expenses. All fees and expenses due and payable to the Administrative Agent, the Lenders and their respective Affiliates and required to be paid on or prior to the Closing Date shall have been paid or shall have been authorized to be deducted from the proceeds of the initial Loans, so long as any such fees or expenses not expressly set forth in the fee letters related to this Agreement or one or more of the credit facilities hereunder entered into by the Company (or the Borrower) and the Administrative Agent, the Lenders and/or their respective Affiliates in connection with the Transactions have been invoiced not less than one (1) Business Day prior to the Closing Date (except as otherwise agreed by the Borrower).
(i) Information. To the extent reasonably requested at least ten (10) Business Days prior to the Closing Date, (x) the Borrower shall have provided to the Administrative Agent and each requesting Lender, and the Administrative Agent and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least three (3) Business Days prior to the Closing Date and (y) any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent and each Lender that so requests a Beneficial Ownership Certification in relation to such Loan Party at least three (3) Business Days prior to the Closing Date.
(j) Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate substantially in the form of Exhibit C, dated the Closing Date and signed by the chief financial officer of the Borrower.
(k) Security Interest. Each Loan Party shall cause all of the owned property (whether personal, tangible, intangible, or mixed, but excluding the Excluded Assets) of such Loan Party to be subject to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations to the extent required by and in accordance with the terms and conditions of the Collateral Documents, subject in any case to Liens permitted by Section 6.01 and to post-closing actions permitted by Section 5.16, including (x) delivery to the Administrative Agent to be held in its possession of all Collateral consisting of intercompany notes, stock certificates and instruments, in each case to the extent required by the Collateral Documents and (y) with respect to each Loan Party, delivery to the Administrative Agent of Uniform Commercial Code financing statements in a form appropriate for filing in the state of organization of such Loan Party.
(l) Unaudited Financial Statements. Unaudited condensed combined statements of operations of the Borrower for the three months ended March 31, 2023 and 2022, condensed combined statements of comprehensive income (loss) of the Borrower for the three months ended March 31, 2023 and 2022, condensed combined balance sheet of the Borrower as of March 31, 2023 and condensed combined statements of cash flows of the Borrower for the three months ended March 31, 2023 and 2022 (such financial statements, collectively, the “Unaudited Financial Statements”).
(m) Lien Searches. The Administrative Agent shall have received the results of a search of the Uniform Commercial Code, tax, judgment and other customary lien searches, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the Closing Date, released (or arrangements reasonably satisfactory to the Administrative Agent for such release shall have been made).
The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of each L/C Issuer to issue, increase or extend any Letter of Credit, is subject to the occurrence of the Closing Date and the satisfaction of the following conditions:
(a) TheExcept as set for in Section 1.04 in connection with a Limited Condition Transaction, the representations and warranties of the Loan Parties set forth in this Agreement shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the date of such Borrowing, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of such earlier date.
(b) AtExcept as set for in Section 1.04 in connection with a Limited Condition Transaction, at the time of and immediately after giving effect to such Borrowing or the issuance, increase or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c) If applicable, the Administrative Agent shall have received a Borrowing Request.
Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Commencing on the Closing Date and until the Termination Date Conditions have been satisfied, each Loan Party will:
SECTION 5.01. Compliance with Laws. (i) Comply, and cause each of its Restricted Subsidiaries to comply with all applicable Laws and (ii) comply, and cause each of its ERISA Affiliates to comply, with their obligations under the Pension Funding Rules with respect to each Plan subject to Pension Funding Rules, in each case, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, and maintain policies and procedures reasonably designed to promote and achieve compliance by itself, each of its Restricted Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws, Anti-Money Laundering Laws or applicable Sanctions Laws and Regulations in all material respects.
SECTION 5.02. Payment of Obligations. Except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, pay and discharge, and cause each of its Restricted Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all Taxes imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, could reasonably be expected by law to become a Lien upon its property (other than Liens permitted under Section 6.01); provided, however, that neither the Borrower nor any of its Restricted Subsidiaries shall be required to pay or discharge any such Tax, assessment, charge or claim that is being contested in good faith and by appropriate action and as to which appropriate reserves have been established in accordance with GAAP.
SECTION 5.03. Compliance with Environmental Laws. Except, in each case, to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect, (i) comply, and cause each of its Restricted Subsidiaries to comply, with all applicable Environmental Laws and Environmental Permits and (ii) obtain and renew, and cause each of its Restricted Subsidiaries to obtain and renew, all Environmental Permits necessary for its operations and properties.
SECTION 5.04. Maintenance of Insurance. Maintain with carriers (that are not Affiliates of the Borrower) reasonably believed by the Borrower to be financially sound and reputable at the time the insurance is procured, insurance with respect to its and its Restricted Subsidiaries’ properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, except to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided that the Borrower and its Restricted Subsidiaries may self-insure against such risks and in such amounts customary in the industry of the Borrower and its Restricted Subsidiaries; provided further that, subject to Section 5.16, all such insurance shall (a) provide for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance (or 10 days’ prior notice for non-payment) and (b) name the Administrative Agent as mortgagee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance) or loss payee (in the case of property insurance), as applicable.
SECTION 5.05. Preservation of Existence, Etc. Except as otherwise permitted by this Agreement or as otherwise agreed by the Administrative Agent in its sole discretion, preserve and maintain, and cause each of its Restricted Subsidiaries to preserve and maintain (a) its existence and (b) its rights, permits, licenses, approvals, privileges and franchises; provided, however, that neither the Borrower nor any Restricted Subsidiary shall be required to preserve any right, permit, license, approval, privilege or franchise if the preservation thereof is no longer necessary or desirable in the normal conduct of the business of the Borrower or such Restricted Subsidiary, as the case may be, and if the loss thereof could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.06. Inspection Rights. At any reasonable time and from time to time during normal business hours and following reasonable prior notice, permit the Administrative Agent or any of the Lenders, or any agents or representatives of the Administrative Agent, to examine and make copies of and abstracts from the records and books of account of the Borrower or any other Restricted Subsidiary (other than materials protected by attorney-client privilege or that a Restricted Subsidiary may not disclose without violation of a confidentiality obligation binding on it or subject to any other data protection laws) and visit the properties of the Borrower and any other Restricted Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and any Restricted Subsidiary with any of their officers, directors and/or, in the presence of the Borrower if the Borrower shall so request, independent public accountants, all at the expense of such Lender or, if applicable, the Administrative Agent and at such reasonable times during normal business hours, upon reasonable advance notice to the Borrower and on only one occasion during any Fiscal Year; provided that, when an Event of Default exists, the Administrative Agent or any Lender may do any of the foregoing at the expense of the Borrower at any time during normal business hours, as often as may be reasonably desired and without advance notice. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document none of the Borrower or any of its Restricted Subsidiaries shall be required to disclose or discuss, or permit the inspection, examination or making of extracts of, any records, books, information or account or other matter (x) in respect of which disclosure to the Administrative Agent, any Lender or their agents or representatives is then prohibited by applicable law or any agreement binding on the Borrower or its Restricted Subsidiaries, (y) that is protected from disclosure by the attorney-client privilege or the attorney work product doctrine or (z) that constitutes non-financial trade secrets or non-financial proprietary information (collectively, the “Disclosure Exceptions”).
SECTION 5.07. Books and Records. Keep, and cause each of its Restricted Subsidiaries to keep, books of record and account sufficient to permit the preparation of Consolidated financial statements in conformity with GAAP.
SECTION 5.08. Maintenance of Properties. Except as otherwise expressly permitted by this Agreement, maintain and preserve, and cause each of its Restricted Subsidiaries to maintain and preserve, all of its properties that are useful and necessary in the normal conduct of its business in good working order and condition, ordinary wear and tear excepted, except where failure to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.09. Transactions with Affiliates. Conduct, and cause each of its Restricted Subsidiaries to conduct, all transactions otherwise permitted under the Loan Documents with any of its Affiliates on terms that are fair and reasonable and, when taken as a whole, substantially no less favorable to the Borrower and its Restricted Subsidiaries than they would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate, other than the following:
(a) transactions between or among the Borrower and/or any of its Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction);
(b) transfer pricing transactions in the ordinary course of business on terms providing for the Borrower and its Restricted Subsidiaries to recover, in the aggregate, their costs (plus any arm’s length profit mark-up) in respect of any transferred product;
(c) transactions permitted under this Agreement, including, without limitation, any transactions permitted under Section 6.04, Dispositions permitted under Section 6.05, Investments permitted under Section 6.06, Restricted Payments permitted under Section 6.07 and voluntary or optional prepayments or redemptions, purchases, defeasements of Junior Financing permitted under Section 6.11;
(d) customary transactions with (including any Investment in or relating to) any Receivables Subsidiary as part of any Receivables Facility;
(e) transactions with Affiliates for the purchase, sale, or lease of goods in the ordinary course of business for less than fair market value, but for not less than cost;
(f) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership plans approved by the board of directors of the Borrower;
(g) the payment of fees, advances, reasonable out-of-pocket costs and indemnities to directors, officers, consultants and employees of the Borrower and any of its Restricted Subsidiaries in the ordinary course of business;
(h) the Borrower or any Restricted Subsidiary may make equity contributions, and/or intercompany loans that have below market interest rates, to any Restricted Subsidiary, so long as any such intercompany loan is payable upon demand and this Agreement does not otherwise prohibit any such equity contribution or intercompany loan;
(i) (A) any employment agreements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business, (B) any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights with employees, officers or directors, and (C) any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract and transactions pursuant thereto;
(j) transactions between the Borrower or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Borrower or any Restricted Subsidiary of the Borrower; provided, however, that (i) such director abstains from voting as a director of the Borrower or the applicable Restricted Subsidiary on any matter involving such other Person and (ii) such Person is not an Affiliate of the Borrower or any Restricted Subsidiary for any reason other than such director’s acting in such capacity;
(k) transactions, agreements and arrangements in existence or committed, as set forth on Schedule 5.09, and, in each case, any amendment thereto or replacement thereof or similar arrangement to the extent such amendment, replacement or arrangement is not adverse to the Lenders when taken as a whole in any material respect (as determined by the Borrower in good faith);
(l) transactions for cash management and other management services for Subsidiaries on customary terms;
(m) transactions in which the Borrower or any of its Restricted Subsidiaries, as the case may be, delivers to the Administrative Agent a letter from an independent financial advisor of nationally recognized standing stating that such transaction is (i) fair to the Borrower or such Restricted Subsidiary from a financial point of view or (ii) on terms that are fair and reasonable and, when taken as a whole, substantially no less favorable to the Borrower or such Restricted Subsidiary than it would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate;
(n) any payments or other transaction pursuant to any tax sharing agreement between the Borrower and any other Person with which the Borrower files a consolidated tax return or with which the Borrower is part of a consolidated group for tax purposes; provided that (i) such payments shall not exceed the amount of any such taxes that the Borrower and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if the Borrower had filed a consolidated return on behalf of an affiliated group of which it were the common parent and of which the includable Subsidiaries were members for all applicable tax periods, (ii) payments with respect to the taxable income of Unrestricted Subsidiaries shall be permitted only to the extent that cash distributions were made by any Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose and (iii) any such payments shall only be permitted to the extent they relate to Taxes that are paid after the Closing Date (“Consolidated Tax Payments”); and
(o) the Spin-Off Transactions entered on or before the Closing Date to the extent (i) described in the Registration Statement, (ii) otherwise disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the Closing Date and (x) filed by the Borrower with the SEC and/or (y) obtained by the Company or the Borrower from the IRS or (iii) not materially adverse to the Administrative Agent and the Lenders.
Nothing in this Section 5.09 shall impair or prevent any allocation of expenses among the Borrower and its Restricted Subsidiaries; provided that such allocation is made on a reasonable basis.
SECTION 5.10. Covenant to Guarantee Obligations and Provide Security.
(a) The Borrower shall cause all of the owned property (whether personal, tangible, intangible, or mixed, but excluding the Excluded Assets) of the Borrower and each Domestic Subsidiary (other than any Excluded Subsidiary) to be subject to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations to the extent required by and in accordance with the terms and conditions of the Collateral Documents, subject in any case to Liens permitted by Section 6.01, including Liens in favor of the Administrative Agent for the benefit of the Secured Parties encumbering the issued and outstanding Equity Interests of each Pledge Subsidiary; provided that in the case of a Pledge Subsidiary that is a CFC Holding Company or a CFC, such Liens shall be limited to 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)).
(b) In respect of any Domestic Subsidiary (other than any Excluded Subsidiary) formed or acquired after the Closing Date, on or prior to the 60th day following the formation or acquisition of such Restricted Subsidiary (or such later date as the Administrative Agent may agree to in its reasonable discretion), cause:
(i) each such Person to deliver to the Administrative Agent a Guaranty Supplement and a joinder to the Security Agreement (in the form contemplated thereby) pursuant to which such Person agrees to be bound by the terms and provisions thereof, such Guaranty Supplement and joinder to the Security Agreement to be accompanied by a supplement to the Perfection Certificate (to be supplemented in respect of each such Person only), appropriate corporate resolutions, other corporate documentation and legal opinions reasonably requested by the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel; and
(ii) all of the owned property (whether personal, tangible, intangible, or mixed, but excluding the Excluded Assets) of each such Person to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations to the extent required by and in accordance with the terms and conditions of the Collateral Documents, subject in any case to Liens permitted by Section 6.01.
(c) Execute and deliver, and cause each Restricted Subsidiary to execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Borrower.
(d) If any assets are acquired by a Loan Party on or after the Closing Date with an aggregate value in excess of $5,000,000 (other than (x) assets constituting Collateral under any Collateral Document that become subject to the Lien under such Collateral Document upon acquisition thereof and (y) Excluded Assets), the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, such Loan Party will (i) cause such assets to be subjected to a Lien securing the Secured Obligations and (ii) take such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Borrower.
(e) If and when a Domestic Subsidiary ceases to be an Excluded Subsidiary, cause such Domestic Subsidiary to comply with the provisions and requirements of this Section 5.10 (including, for the avoidance of doubt, Section 5.10(b)) as set forth above within 60 days of such cessation (or by such later date as the Administrative Agent may permit in its discretion).
(f) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, (1) no Loan Party shall be required, nor shall the Administrative Agent be authorized, (i) to perfect any Liens in the Collateral by any means other than by (A) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant jurisdiction, (B) filings in United States government offices with respect to intellectual property to the extent required by the Collateral Documents, (C) delivery to the Administrative Agent to be held in its possession of all Collateral consisting of intercompany notes, stock certificates and instruments, in each case to the extent required by the Collateral Documents or (D) necessary perfection steps with respect to commercial tort claims and letter of credit rights that constitute Collateral or (ii) to take any action (other than the actions listed in clauses (i)(A) and (C) above) with respect to any assets located outside of the United States; and (2) none of the Loan Parties shall be required to enter into any control agreement with respect to any deposit account, securities account, commodity account or other account.
(g) This Section 5.10 is subject in all respects to the terms of Section 9.20.
SECTION 5.11. Use of Proceeds. Use the proceeds of the Loans only as provided in Section 3.14.
SECTION 5.12. Reporting Requirements. Furnish to the Administrative Agent and the Lenders:
(a) Default Notices. As soon as possible and in any event within five Business Days of a Responsible Officer of the Borrower obtaining knowledge of the occurrence of a Default or Event of Default which is continuing, a statement of a Responsible Officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower has taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2023), (i) a copy of the annual audit report for such Fiscal Year for the Borrower, including Consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and Consolidated statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by a report and opinion of independent public accountants of recognized standing, which shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification, exception or explanatory paragraph or any qualification, exception or explanatory paragraph as to the scope of such audit (other than such a qualification or exception that is solely with respect to, or resulting solely from, the upcoming maturity date of any of the Loans hereunder being scheduled to occur within twelve months from the time such report is delivered) to the effect that such Consolidated financial statements fairly present in all material respects the financial position, results of operations and cash flows of the Borrower on a Consolidated basis in accordance with GAAP; provided that, if the independent auditor’s report with respect to such Consolidated financial statements is a combined report (that is, one report containing both an opinion on such consolidated financial statements and an opinion on internal controls over financial reporting), then such report may include a qualification or limitation relating to the Borrower’s system of internal controls over financial reporting due to the exclusion of any acquired business from the management report on internal controls over financial reporting made pursuant to Item 308 of Regulation S-K of the SEC, to the extent such exclusion is permitted under provisions published by the SEC; provided further that, if applicable, the independent auditor’s report may contain references to independent audits performed by other independent public accountants of recognized national standing as contemplated by AU Section 543, Part of Audit Performed by Other Independent Auditors, or any successor standard under GAAP; (ii) a Compliance Certificate, which shall include a statement from a Financial Officer of the Borrower stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (iii) customary management discussion and analysis of operating results.
(c) Quarterly Financials. As soon as available and in any event within 45 days after the end of each of the first three quarters of each Fiscal Year (commencing with the Fiscal Quarter ending June 30, 2023), (i) Consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such quarter, Consolidated statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Quarter and ending with the end of such Fiscal Quarter and Consolidated statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, all certified by a Financial Officer of the Borrower as fairly presenting in all material respects the financial position, results of operations and cash flows of the Borrower on a Consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; and (ii) a Compliance Certificate, which shall include a statement from a Financial Officer of the Borrower stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (iii) customary management discussion and analysis of operating results.
(d) Necessary Adjustments. In the event that any Unrestricted Subsidiaries exist at such time, then simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (b) and (c) above, a summary statement, prepared in good faith by a Responsible Officer of Borrower, reflecting adjustments necessary to eliminate the accounts of such Unrestricted Subsidiaries from such consolidated financial statements.
(e) Litigation. Promptly after a Responsible Officer of the Borrower has knowledge of the commencement thereof, notice of all actions, suits, investigations, litigation and proceedings before any Governmental Authority against any Loan Party or any of its Restricted Subsidiaries that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.
(f) ERISA. Promptly and in any event within 10 Business Days of any Responsible Officer of the Borrower obtaining knowledge of the occurrence of any ERISA Event or Foreign Plan Event or the incurrence of a Withdrawal Liability to a Multiemployer Plan, in each case that could reasonably be expected to have a Material Adverse Effect, a statement of a Responsible Officer of the Borrower describing such ERISA Event, Foreign Plan Event or Withdrawal Liability and the action, if any, that the applicable Loan Party or ERISA Affiliate has taken and proposes to take with respect thereto.
(g) Other Information. (i) Documentation and other information in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, as the Administrative Agent, or any Lender through the Administrative Agent, may from time to time reasonably request and (ii) subject to the Disclosure Exceptions, such other information respecting the business, condition (financial or otherwise), operations, performance or properties of any Loan Party as the Administrative Agent, or any Lender through the Administrative Agent, may from time to time reasonably request.
(h) Important Events. Within five Business Days of any Responsible Officer of the Borrower acquiring knowledge of any event that could reasonably be expected to have a Material Adverse Effect, notice of such event.
Documents required to be delivered pursuant to Section 5.12(b) or (c) (to the extent any such documents are included in materials otherwise filed with the SEC), including related management discussion and analysis of operating results, may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Internet in the investors’ relations section of the Borrower’s website; (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) or (iii) on which such documents are posted on the website of the SEC at http://www.sec.gov (or any successor website); provided that (A) upon request of the Administrative Agent or any Lender, the Borrower shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, as applicable, and (B) the Borrower shall notify the Administrative Agent (by facsimile, electronic mail or otherwise) of the posting of any such documents under the foregoing clause (i) or (ii). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above and, in any event, shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Notwithstanding the above, if any report, certificate or other information required under this Section is due on a day that is not a Business Day, then such report, certificate or other information shall be required to be delivered on the first day after such day that is a Business Day.
The Borrower hereby acknowledges that (a) the Administrative Agent, the Bookrunners and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on an Approved Electronic Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrower or its respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Bookrunners, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or their respective securities for purposes of United States Federal and state securities laws (provided, however, that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of an Approved Electronic Platform designated “Public Side Information”; and (z) the Administrative Agent, each Bookrunner and each Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of an Approved Electronic Platform not designated “Public Side Information”. Notwithstanding the foregoing, no Loan Party shall be under any obligation to mark any Borrower Materials “PUBLIC”. The Borrower acknowledges and agrees that the DQ List does not constitute material non-public information and shall be posted promptly to all Lenders by the Administrative Agent (including any updates thereto from time to time).
SECTION 5.13. Maintenance of Ratings. For so long as any of the Term B Loans, Incremental Term B Loans and a term B loan tranche of Permitted Refinancing Term Loans are outstanding, use commercially reasonable efforts to cause the outstanding Term B Loans, Incremental Term B Loans, term B loan tranche of Permitted Refinancing Term Loans and the Borrower to become and continue to be rated by at least two of S&P, Moody’s and Fitch; provided, however, that, in each case, no Loan Party shall be required to obtain or maintain any specific rating.
SECTION 5.14. Lender Calls. HostAt the written request of the Administrative Agent, host quarterly conference calls (at a time mutually agreed upon by the Borrower and the Administrative Agent but, in any event, no earlier than the Business Day following the delivery of the applicable financial information pursuant Sections 5.12(b) and (c)) with Lenders who choose to attend such conference calls to discuss the results of operations of the Borrower and its Subsidiaries for the previous fiscal quarter (it being agreed that the Borrower’s quarterly and annual “earnings” calls or other calls with public equity holders of the Borrower that are open to the Lenders are deemed to satisfy this requirement).
SECTION 5.15. Designation of Unrestricted and Restricted Subsidiaries. The Borrower may designate (such designation, a “Subsidiary Designation”), at any time, any Subsidiary (other than any Subsidiary that was previously an Unrestricted Subsidiary) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary by delivering to the Administrative Agent a certificate of a Responsible Officer of the Borrower specifying such designation; provided that:
(a) both immediately before and immediately after any such designation, no Event of Default shall have occurred and be continuing or would result therefrom;
(b) the Borrower shall be in pro forma compliance, upon giving effect to such designation, with the Financial Covenants as of the last day of the most recently ended Measurement Period;
(c) in the case of a designation of a Subsidiary as an Unrestricted Subsidiary, no Subsidiary may be designated as an Unrestricted Subsidiary if such Subsidiary directly or indirectly owns any Equity Interests of, or holds a Lien on, any property of, the Borrower, any Loan Party or any Restricted Subsidiary that is not a Subsidiary to be so designated as an Unrestricted Subsidiary;
(d) no Subsidiary may be designated as an Unrestricted Subsidiary or continue as an Unrestricted Subsidiary unless each of its direct and indirect Subsidiaries is also designated an Unrestricted Subsidiary pursuant to this Section 5.15; and
(e) the designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower (or its Subsidiaries) in such Subsidiary, at the time of such designation, in an amount equal to the fair market value of the net assets of such Subsidiary, and such Investment must at such time be permitted under Section 6.06, and no such designation shall be permitted unless such Investment is permitted by Section 6.06.
(f) The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence, at the time of such designation, of any Investment, Debt or Liens of such re-designated Restricted Subsidiary existing at such time.
(g) Notwithstanding anything herein to the contrary, (i) if any Restricted Subsidiary owns or holds any Material Intellectual Property, such Restricted Subsidiary or Loan Party may not be designated as an Unrestricted Subsidiary and (ii) neither the Borrower nor any of its Restricted Subsidiaries shall make any Investment in, Restricted Payment to or otherwise Dispose of any Material Intellectual Property to, any Unrestricted Subsidiary (in each case, without regard to whether the Borrower or any Restricted Subsidiary has the right to continue to utilize any such intellectual property after such transfer); for the avoidance of doubt, it is understood and agreed that such restriction shall not restrict any non-exclusive licenses, sublicenses or cross licenses of rights in intellectual property or any rights in intellectual property that become Material Intellectual Property subsequent to the acquisition by an Unrestricted Subsidiary.
SECTION 5.16. Post-Closing Actions. Within the time periods specified on Schedule 5.16 hereto (as each may be extended by the Administrative Agent in its reasonable discretion), complete such undertakings as are set forth on Schedule 5.16 hereto.
ARTICLE VI
Negative Covenants
Commencing on the Closing Date and until the Termination Date Conditions have been satisfied, the Loan Parties shall not:
SECTION 6.01. Liens. Create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with respect to any of its properties of any character (including, without limitation, accounts) whether now owned or hereafter acquired, except (collectively, “Permitted Liens”):
(a) Permitted Encumbrances;
(b) Liens existing, or applicable to committed obligations, on the Closing Date and set forth in Schedule 6.01, and Liens securing any Permitted Refinancing of any obligations secured by a Lien described in this clause (b);
(c) any Lien on any asset securing Debt permitted under Section 6.02(e)(i) and Permitted Refinancing thereof permitted under Section 6.02(e)(iii); provided that such Liens do not at any time encumber any property other than the property acquired, developed, purchased, leased, constructed, repaired, restored, replaced, maintained, upgraded, expanded or improved with the proceeds of such Debt, except for accessions and additions to such property, replacements or improvements thereof, customary security deposits with respect thereto, related contract rights and payment intangibles, and the proceeds and the products thereof, and any lease of such property (including accessions thereto) and the proceeds and products thereof; provided further that individual financings provided by one lender may be cross-collateralized to other financings provided by such lender or its affiliates;
(d) Liens arising in connection with Capitalized Leases permitted under Section 6.02(e)(ii) and Permitted Refinancing thereof permitted under Section 6.02(e)(iii); provided that such Liens do not extend to any assets (except for accessions and additions to such assets, replacements and products thereof and customary security deposits, related contracts rights and payment intangibles, and the proceeds and products of such assets) other than the property financed by such Debt; provided further that individual financings provided by one lender may be cross-collateralized to other financings provided by such lender or its affiliates;
(e) to the extent such transactions create a Lien thereunder, liens in favor of lessors securing Sale and Leaseback Transactions permitted under this Agreement on the asset subject to such Sale and Leaseback Transactions;
(f) Liens securing (i) Debt permitted by Section 6.02(j)(ii) existing on property at the time of acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary, in each case after the Closing Date; provided that (x) such Lien was not incurred in contemplation of such acquisition or such Person becoming a Restricted Subsidiary and (y) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and after acquired property subject to a Lien pursuant to terms existing at the time of such acquisition, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (ii) any Permitted Refinancing of Debt secured by a Lien permitted under this clause (f);
(g) Liens securing Debt permitted to be incurred under SectionsSection 6.02(g)(ii), provided that any Liens on the Collateral incurred pursuant to this clause (g) shall be either pari passu with or junior to the Liens securing the Obligations; provided further that (x) any Debt secured by the Collateral on a pari passu basis with the Liens securing the Obligations shall be subject to the applicable terms and conditions that apply to Incremental Equivalent Debt hereunder and (y) any Debt secured by the Collateral on a junior basis to the Liens securing the Obligations shall be subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent;
(h) Liens securing Debt permitted to be incurred under Section 6.02(i); provided that Liens securing Debt permitted under Section 6.02(i) do not encumber any assets or property of any Loan Party;
(i) (i) Liens created pursuant to any Loan Document or otherwise securing any Secured Obligations and (ii) Liens securing Permitted Credit Agreement Refinancing Indebtedness that is secured on a junior basis to, or on a pari passu basis with, the Loans and, except with respect to the Permitted Refinancing Loans, that is subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent; provided that no such Liens shall be incurred or exist pursuant to this clause (i)(ii) during an Investment Grade Period;
(j) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Subsidiary;
(k) Liens securing obligations in respect of letters of credit, bank guarantees, warehouse receipts or similar obligations permitted under this Agreement and incurred in the ordinary course of business or consistent with past practice or industry practices and not supporting obligations in respect of Debt for borrowed money;
(l) Liens solely on any cash earnest money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement in respect of any Investment permitted hereunder;
(m) Liens on any amounts held by a trustee or other escrow agent under any indenture or other debt agreement issued in escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture or other debt agreement pursuant to customary discharge, redemption or defeasance provisions;
(n) Liens on Equity Interests in Unrestricted Subsidiaries and joint ventures that are not Restricted Subsidiaries (i) securing obligations of such Unrestricted Subsidiary or joint venture, as applicable or (ii) pursuant to the relevant joint venture agreement or arrangement;
(o) Liens on securities that are the subject of repurchase agreements constituting Investments permitted under Section 6.06 (other than Section 6.06(n));
(p) subordination, non-disturbance and/or attornment agreements with any ground lessor, lessor or any mortgagor of any of the foregoing, with respect to any ground lease or other lease or sublease entered into by the Borrower or any Restricted Subsidiary;
(q) Liens securing insurance premium financing arrangements; provided that such Liens are limited to the applicable unearned insurance premiums;
(r) Liens in favor of a Receivables Subsidiary or a Person that is not a Restricted Subsidiary of the Borrower on Receivables Assets or the Equity Interests of a Receivables Subsidiary, in each case granted in connection with a Receivables Facility solely to secure obligations owing to such Receivables Subsidiary or other Person that is not a Restricted Subsidiary of the Borrower under such Receivables Facility; and
(s) Liens securing Debt permitted to be incurred under Section 6.02(v); provided that no such Liens shall be incurred or exist pursuant to this clause (s) during an Investment Grade Period.; and
(t) Liens on Collateral securing Debt permitted to be incurred under Section 6.02(f), provided that any Liens incurred pursuant to this clause (t) shall be (x) either pari passu with or junior to the Liens securing the Obligations and (y) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent.
Any Lien permitted above on any property or assets may extend to the identifiable proceeds thereof.
Notwithstanding the foregoing, none of the Liens permitted pursuant to this Section 6.01 may, at any time, attach to (A) any real property located within the United States and owned by the Borrower or any of its Restricted Subsidiaries, other than Permitted Encumbrances or (B) any property or assets of any Restricted Subsidiary that is not a Loan Party, other than Permitted Encumbrances and Liens permitted under Section 6.01(h).
SECTION 6.02. Debt. Create, incur, assume or suffer to exist, or permit any Restricted Subsidiary of the Borrower to create, incur, assume or suffer to exist, any Debt, except:
(a) Debt in respect of Hedge Agreements not prohibited by Section 6.09;
(b) intercompany Debt of the Borrower or any of its Restricted Subsidiaries owing to the Borrower or any of its Restricted Subsidiaries to the extent not prohibited by Section 6.06;
(c) (i) the Secured Obligations and (ii) Permitted Refinancing of Debt permitted by this clause (c);
(d) Debt existing, or applicable to committed obligations, on the Closing Date and set forth on Schedule 6.02, and any Permitted Refinancing of Debt permitted by this clause (d);
(e) (i) Debt incurred or assumed by the Borrower or any of its Restricted Subsidiaries for the purpose of financing the acquisition, development, purchase, lease, construction, repair, restoration, installation, replacement, maintenance, upgrade, expansion or improvement of fixed or capital assets or other property (whether real or personal) (whether through the direct purchase of property or the Equity Interests of any Person owning such assets or property); provided that (x) such Debt is incurred concurrently with or within 270 days after the applicable acquisition, purchase or lease (or, if applicable, the completion of development, construction, repair, restoration, installation, replacement, maintenance, upgrade, expansion or improvement or the commencement of operation of the applicable property, whichever occurs later) and (y) such Debt does not exceed the cost of such acquisition, development, purchase, lease, construction, repair, restoration, installation, replacement, maintenance, upgrade, expansion or improvement, (ii) Debt under Capitalized Leases (including Debt under Sale Leaseand Leaseback Transactions) and (iii) any Permitted Refinancing thereof; provided that the aggregate principal amount of Debt outstanding under this clause (e) shall not exceed, at the time of incurrence thereof, together with any Permitted Refinancing thereof, the greater of (x) $250,000,000315,000,000 and (y) 10% of the Consolidated Net Tangible Assets;
(f) [reserved];(i) the Existing 2029 Notes in an aggregate principal amount not to exceed $525,000,000 and (ii) Permitted Refinancing of Debt permitted by this clause (f); provided that any secured Debt incurred pursuant to this clause (f) shall be subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent;
(g) (i) (A) additional unsecured Debt of the Loan Parties in an unlimited amount subject to pro forma compliance, at the time of incurrence thereof, with Section 6.12 as of the last day of the most recently ended Measurement Period, provided that (x) no Debt comprising any term A loan tranche (as determined by the Administrative Agent and the Borrower, taking into account maturity, amortization and applicable rates with respect thereto), other than, at the option of the Borrower, Permitted Bridge Indebtedness, that is permitted under this Section 6.02(g)(i) shall mature earlier than the latest Term A Loan Maturity Date then in effect or have a shorter weighted average life to maturity than the longest remaining weighted average life to maturity of the Term A Loans and (y) no Debt (other than Debt comprising any term A loan tranche and, at the option of the Borrower, Permitted Bridge Indebtedness) that is permitted under this Section 6.02(g)(i) shall mature earlier than the Latest Maturity Date then in effect or have a shorter weighted average life to maturity than the longest remaining weighted average life to maturity of the Term Loans and (B) any Permitted Refinancing of the Debt permitted under clause (i)(A); (ii) additional Debt of the Loan Parties in an aggregate outstanding principal amount not to exceed, at the time of incurrence thereof, together with any Permitted Refinancing thereof, the greater of (A) $175,000,000190,000,000 and (B) 6% of the Consolidated Net Tangible Assets minus the amount of Incremental Facilities, Incremental Equivalent Debt and Permitted Refinancings thereof incurred in reliance upon clause (b) of the definition of Incremental Fixed Amount; and (iii) Debt consisting of the accretion of original issue discount with respect to any Permitted Convertible Indebtedness not prohibited under this Section 6.02;
(h) Debt of the Borrower and its Restricted Subsidiaries incurred in connection with any Receivables Facility in an aggregate outstanding principal amount not to exceed, at the time of incurrence thereof, together with any Permitted Refinancing thereof, the greater of (x) $250,000,000315,000,000 and (y) 10% of the Consolidated Net Tangible Assets;
(i) Debt of Foreign Subsidiaries of the Borrower and Debt of non-Loan Parties in an aggregate outstanding principal amount not to exceed, at the time of incurrence thereof, together with any Permitted Refinancing thereof, the greater of (x) $150,000,000205,000,000 and (y) 6.5% of the Consolidated Net Tangible Assets;
(j) (i) unsecured Debt assumed in connection with a Permitted Acquisition in an unlimited amount subject to pro forma compliance, at the time of incurrence thereof, with Section 6.12 as of the last day of the most recently ended Measurement Period (and any Permitted Refinancing thereof), and (ii) subject to pro forma compliance, at the time of incurrence thereof, with Section 6.12 as of the last day of the most recently ended Measurement Period, secured Debt assumed in connection with a Permitted Acquisition in an outstanding principal amount not to exceed, at the time of assumption thereof, the greater of (A) $100,000,000125,000,000 and (B) 4% of the Consolidated Net Tangible Assets (provided that, in the case of this clause (ii), the Lien securing such Debt does not extend to or cover any other assets or property (other than the proceeds or products thereof and after acquired property subject to a Lien pursuant to terms existing at the time of such acquisition, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition)) (and any Permitted Refinancing thereof); provided that, in each case of clauses (i) and (ii), such Debt was not incurred or issued in contemplation of or in connection with such Permitted Acquisition and was in existence on the date of such Permitted Acquisition;
(k) [reserved];
(l) Debt owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Restricted Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(m) Debt in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(n) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(o) Debt arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with any Investments or the Disposition of any business, assets or any Restricted Subsidiary not prohibited by this Agreement;
(p) Debt in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued in the ordinary course of business or consistent with past practice or industry practices and not supporting obligations in respect of Debt for borrowed money;
(q) Debt incurred in the ordinary course of business in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money;
(r) Debt representing deferred compensation to employees, consultants or independent contractors of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business;
(s) Debt (and any Permitted Refinancing thereof) issued by the Borrower or any Restricted Subsidiary to current or former directors, officers, employees or consultants or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower permitted by Section 6.07, in an aggregate outstanding amount not exceeding, together with outstanding Investments permitted by Section 6.06(c)(iii), $15,000,000;
(t) Debt consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements or (iii) surety bonds and similar instruments, in each case, incurred in the ordinary course of business;
(u) Guarantees of Debt of the Borrower and/or any of its Restricted Subsidiaries to the extent such Debt being guaranteed is permitted by any of clauses (a) through (c), (e), (h), (l) through (r), (t), and (v) of this Section 6.02 to the extent such Guarantees are permitted under Section 6.06 (other than Section 6.06(o));
(v) (i) Incremental Equivalent Debt and (ii) Permitted Refinancing of Debt permitted by this clause (v); and
(w) Guarantees of foreign pension obligations and liabilities of the Borrower and/or any Subsidiary.
SECTION 6.03. Change in Nature of Business. Conduct, transact or engage, or permit any Restricted Subsidiary of the Borrower to conduct, transact or engage, in any business or operation other than those conducted on the Closing Date or any activities or business that is reasonably similar, ancillary, incidental, complementary or related thereto or a reasonable extension, development or expansion thereof.
SECTION 6.04. Fundamental Changes. Merge, wind up, dissolve or liquidate into or consolidate with (or any local law equivalent thereof) any Person or permit any Person to merge, liquidate into it, or consummate a Division as the Dividing Person, or permit any Restricted Subsidiary of the Borrower to do so, except that:
(a) any Domestic Subsidiary that is a Restricted Subsidiary may merge, wind up, dissolve or liquidate into or consolidate with (i) the Borrower; provided that the Borrower shall be the continuing or surviving Person of such transaction or (ii) any one or more other Domestic Subsidiaries that are Restricted Subsidiaries; provided that, if the merger, wind up, dissolution, liquidation or consolidation involves a Guarantor, the continuing or surviving Person of such transaction shall either be such Guarantor or become a Guarantor pursuant to the terms of Section 5.10;
(b) any Foreign Subsidiary may merge, wind up, dissolve or liquidate into or consolidate with (i) any one or more other Foreign Subsidiaries or (ii) with any Domestic Subsidiary that is a Restricted Subsidiary (provided that such Domestic Subsidiary is the continuing or surviving Person of such transaction);
(c) any Restricted Subsidiary that is not a Loan Party may merge, wind up, dissolve or liquidate into or consolidate with any other Restricted Subsidiary that is not a Loan Party;
(d) any Restricted Subsidiary may merge, wind up, dissolve or liquidate into or consolidate with another Person to effectuate an Investment permitted under Section 6.06 (including any merger, windup, dissolution, liquidation or consolidation to effectuate a Permitted Acquisition) or any Disposition permitted under Section 6.05 (other than clause (b) thereof);
(e) any Restricted Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Loan Parties at such time, or, with respect to assets not so held by one or more Loan Parties, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.05 (other than clause (b) thereof); and
(f) the Borrower and its Restricted Subsidiaries may effectuate the Spin-Off Transactions on the Closing Date to the extent (i) described in the Registration Statement or (ii) otherwise disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the Closing Date and (x) filed by the Borrower with the SEC and/or (y) obtained by the Company or the Borrower from the IRS.
SECTION 6.05. Dispositions. Dispose of, or permit any Restricted Subsidiary of the Borrower to Dispose of, any assets, except:
(a) Dispositions of inventory in the ordinary course of its business;
(b) transactions permitted by Section 6.04, Investments permitted by Section 6.06 and Restricted Payments permitted by Section 6.07;
(c) (i) Dispositions of assets by any Loan Party or any Restricted Subsidiary to any Loan Party; (ii) Dispositions of assets by any Restricted Subsidiary that is not a Loan Party to any Restricted Subsidiary; and (iii) Dispositions by the Borrower and any other Loan Party to any Restricted Subsidiary that is not a Loan Party in an aggregate amount not to exceed, together with the aggregate amount of outstanding Investments made pursuant to Section 6.06(h)(iii), the greater of (x) $125,000,000155,000,000 and (y) 5.0% of the Consolidated Net Tangible Assets;
(d) Dispositions by the Borrower and the Restricted Subsidiaries not otherwise permitted under this Section 6.05; provided that (i) in the case of Dispositions involving aggregate consideration of at least $40,000,000, at least 75% of such proceeds consist of cash or Cash Equivalents (it being agreed that the following shall be considered “cash” for purposes hereof: (xw) liabilities (other than liabilities expressly subordinated to the Obligations and intragroup liabilities) assumed by the transferee or that are otherwise cancelled or terminated in connection with the Disposition; (yx) securities, notes or other obligations or assets received from the transferee that are converted into cash or Cash Equivalents within 180 days of the Disposition; (y) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (y) that is at that time outstanding, not in excess of the greater of (x) $125,000,000 and (y) 4.0% of Consolidated Net Tangible Assets) and (z) Debt of a Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of the Disposition, so long as there is no recourse to any Loan Party in connection with such Debt), (ii) such Dispositions are for fair market value (other than minority interests in Restricted Subsidiaries) and (iii) no Default shall have occurred and be continuing or would result from such Dispositions;
(e) Dispositions of obsolete or surplus assets or other assets no longer used or useful in the conduct of such Person’s business;
(f) Dispositions consisting of the licensing of intangible assets in the ordinary course between Restricted Subsidiaries of the Borrower or between the Borrower and any of its Restricted Subsidiaries;
(g) Dispositions of Receivables Assets to a Receivables Subsidiary or a Person that is not a Restricted Subsidiary of the Borrower in connection with any Receivables Facility;
(h) in addition to Dispositions otherwise permitted under this Section 6.05 (the other exceptions not limiting the ability of Dispositions to be made under this subsection), Dispositions by the Borrower and its Restricted Subsidiaries in an amount not to exceed in any Fiscal Year the greater of the (x) $50,000,00060,000,000 and (y) 2% of the Consolidated Net Tangible Assets;
(i) Dispositions of assets acquired as part of any Permitted Acquisition that the Borrower or any Restricted Subsidiary Disposes (x) as part of its integration efforts relating to such Permitted Acquisition or (y) in connection with the approval of any antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate a Permitted Acquisition;
(j) any Disposition of property or assets subject to a Sale and Leaseback Transaction not prohibited by this Agreement;
(k) any exchange or swap of property or assets (other than cash and Cash Equivalents) for other assets (other than cash and Cash Equivalents) of comparable or greater value or usefulness to the business of the Borrower and its Restricted Subsidiaries (taken as a whole), determined in good faith by the Borrower;
(l) leases, licenses, subleases and sublicenses of any property or assets of the Borrower and its Restricted Subsidiaries in the ordinary course of business;
(m) Dispositions of any intellectual property rights of the Borrower or any Restricted Subsidiary determined in good faith by the Borrower to be no longer economically practicable to maintain or useful or necessary in the operation of the business of the Borrower or any Restricted Subsidiaries;
(n) any issuance or Disposition by the Borrower of its own Equity Interests;
(o) any Disposition of cash, Cash Equivalents or marketable securities in the ordinary course of business;
(p) any Disposition of cash or Cash Equivalents as consideration for, and in accordance with the requirements of, any Permitted Acquisition or any other transaction not prohibited by this Agreement;
(q) [reserved];
(r) any casualty loss, governmental taking or other involuntary Disposition;
(s) (i) the discount or write-off of accounts receivable for the purpose of collection to any collection agency, in each case in the ordinary course of business and (ii) Dispositions of receivables (including defaulted receivables), notes receivable, rights to payment or other current assets or, in each case, participations therein, in the ordinary course of business or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable or rights to payment in connection with the settlement of delinquent accounts receivable, the collection or compromise thereof or as part of any bankruptcy or reorganization process of suppliers, customers or other commercial counterparties (including any discount or forgiveness in connection with the foregoing);
(t) Dispositions (i) in connection with any casualty event or any eminent domain, condemnation or similar proceeding, (ii) by reason of the exercise of termination rights under any lease, sublease, license, sublicense, concession or other agreement or (iii) pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement;
(u) the unwinding of any Hedge Agreement pursuant to its terms;
(v) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(w) the Disposition of any Investment acquired by virtue of any Bail-in Action with respect to any Lender;
(x) Dispositions required to be made to comply with the order of any Governmental Authority or applicable Law;
(y) any Disposition of any interest in any bank acceptance draft or similar instrument delivered by a customer in the ordinary course of business;
(z) any Disposition to effectuate the Spin-Off Transactions to the extent (i) described in the Registration Statement or (ii) otherwise disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the Closing Date and (x) filed by the Borrower with the SEC and/or (y) obtained by the Company or the Borrower from the IRS; and
(aa) any Disposition of Equity Interests in, or Debt or other securities of, an Unrestricted Subsidiary (other than an Unrestricted Subsidiary, the primary assets of which are cash and/or Cash Equivalents).
SECTION 6.06. Investments. Make, hold or acquire, or permit any Restricted Subsidiary of the Borrower to so make, hold or acquire, any Investment in any Person, except:
(a) Investments existing, or applicable to committed obligations, on the Closing Date and set forth in Schedule 6.06, and any extensions, renewals, replacements or reinvestments of Investments permitted by this clause (a), so long as the aggregate amount of all Investments pursuant to this clause (a) is not increased at any time above the amount of such Investment existing or committed as of the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence as of the Closing Date, or as otherwise permitted by this Section 6.06);
(b) Investments in Unrestricted Subsidiaries in an aggregate amount outstanding not to exceed, at the time of the making thereof, the greater of (x) $50,000,00060,000,000 and (y) 2.0% of the Consolidated Net Tangible Assets;
(c) loans and advances to officers, directors, employees or consultants of the Borrower or any Restricted Subsidiaries (i) in the ordinary course of business in an aggregate outstanding amount not to exceed $5,000,000, (ii) in respect of payroll payments and expenses in the ordinary course of business or (iii) in connection with any such Person’s purchase of Equity Interests of the Borrower in an aggregate outstanding amount not exceeding, together with outstanding Debt permitted by Section 6.02(s), $15,000,000;
(d) deposits required by government agencies or public utilities;
(e) accounts receivable, security deposits and prepayments, trade credit and bank acceptance drafts and similar instruments delivered by customers, in each case, in the ordinary course of business;
(f) Investments by the Borrower and its Restricted Subsidiaries in Cash Equivalents;
(g) Investments in Hedge Agreements not prohibited by Section 6.09;
(h) intercompany Investments (i) by any Loan Party or any Restricted Subsidiary in any Loan Party; (ii) by any Restricted Subsidiary that is not a Loan Party in any Restricted Subsidiary; and (iii) by the Borrower and any other Loan Party in any Restricted Subsidiary that is not a Loan Party in an aggregate amount of such Investments that are made and remain outstanding not to exceed, at the time of the making thereof, together with the aggregate amount of Dispositions made pursuant to Section 6.05(c)(iii), the greater of (x) $125,000,000155,000,000 and (y) 5.0% of the Consolidated Net Tangible Assets;
(i) Investments (i) in accounts receivable in the ordinary course of business and (ii) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business to the extent that the Borrower or relevant Restricted Subsidiary was a creditor of such customer or supplier at the time of filing of such bankruptcy, reorganization or at the time such obligation became delinquent or such dispute arose, as the case may be;
(j) Investments arising out of the receipt of non-cash consideration for the Disposition of any property or assets permitted under Section 6.05;
(k) Investments by the Borrower and its Restricted Subsidiaries in an aggregate amount outstanding not to exceed, at the time of the making thereof, the greater of (x) $125,000,000155,000,000 and (y) 5.0% of Consolidated Net Tangible Assets;
(l) other Investments by the Borrower and its Restricted Subsidiaries consisting of the purchase or other acquisition of all of the Equity Interests of another Person or the assets comprising a division or business unit or a substantial part or all of the business or assets of another Person; provided that (i) immediately after giving effect to such purchase or other acquisition, the Borrower shall be in pro forma compliance with Section 6.12, such compliance to be determined on the basis of the financial information most recently delivered (or required to have been delivered) to the Administrative Agent and the Lenders as though such Investment had been consummated as of the first day of the fiscal period covered thereby and (ii) immediately before and immediately after giving pro forma effect to any such purchase or other acquisition, the Loan Parties are in compliance with Section 6.03; provided further that, if such acquisition is a Limited Condition Transaction, the condition in clause (i) above may be satisfied as of the date of the entering into of the definitive agreement for such Limited Condition Transaction; and provided further that the aggregate amount of purchases or other acquisitions of Equity Interests in Persons who do not become Loan Parties upon consummation of such acquisitions, when taken together with the aggregate amount of purchases or other acquisitions of assets comprising a division or business unit or a substantial part or all of the business or assets of another Person where such assets do not become Collateral upon consummation of such acquisitions, in each case, made by Loan Parties pursuant to this clause (l), shall not exceed, at the time of the making thereof, the greater of (x) $250,000,000315,000,000 and (y) 10% of the Consolidated Net Tangible Assets;
(m) Investments by the Borrower and its Restricted Subsidiaries in joint venture entities that are not Restricted Subsidiaries in an aggregate amount not to exceed, at the time of the making thereof, $75,000,000 (in each case, net of cash repayments of principal in the case of Investments consisting of loans, sale proceeds in the case of Investments consisting of debt instruments and cash equity returns (whether as a distribution, dividend, redemption or sale) in the case of Investments consisting of equity investments);
(n) Investments resulting from pledges and deposits permitted under Section 6.01 (other than Section 6.01(r));
(o) transactions permitted by Section 6.02 (other than Section 6.02(b), (h) or (u)), including the issuance by the Borrower and/or any of its Restricted Subsidiaries of any permitted Guarantees;
(p) (i) Guarantees by the Borrower or any of its Restricted Subsidiaries of operating leases or of other obligations that do not constitute Debt, in each case entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and (ii) Guarantees by the Borrower or any of its Restricted Subsidiaries of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower or any of its Restricted Subsidiaries, in each case, entered into in the ordinary course of business;
(q) the Borrower’s or any Restricted Subsidiary’s entry into (including payments of premiums in connection therewith), and the performance of obligations under, any Permitted Bond Hedge Transactions and Permitted Warrant Transactions in accordance with their terms;
(r) Investments in connection with any Receivables Facility permitted under Section 6.02, the contribution, sale or other transfer of Receivables Assets, cash or Cash Equivalents made in connection with a Receivables Facility permitted under Section 6.02 or repurchases in connection with the foregoing (including the contribution or lending of cash and/or Cash Equivalents to Restricted Subsidiaries to finance the purchase of Receivables Assets from the Borrower or any Restricted Subsidiary or to otherwise fund required reserves, the contribution of replacement or substitute assets to a Receivables Subsidiary and Investments of funds held in accounts permitted or required by the arrangements governing such Receivables Facility or any related Debt);
(s) Investments of a Restricted Subsidiary acquired after the Closing Date or of a Person merged into the Borrower or merged into or consolidated with any Restricted Subsidiaries after the Closing Date, in each case, (i) to the extent such acquisition, merger, or consolidation is permitted under this Section 6.06 and Section 6.04 (other than Section 6.04(d)) and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, or consolidation and were in existence on the date of such acquisition, merger, or consolidation;
(t) acquisitions by the Borrower or any of its Restricted Subsidiaries of obligations of one or more directors, officers, employees or consultants of the Borrower or any of its Restricted Subsidiaries in connection with such director’s, officer’s, employee’s or consultant’s acquisition of Equity Interests of the Borrower or any Restricted Subsidiary, so long as no cash is actually advanced by the Borrower or any of its Restricted Subsidiaries to such directors, officers, employees or consultants in connection with the acquisition of any such obligations;
(u) Investments to the extent that payment for such Investments is made with the Borrower’s common Equity Interests;
(v) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers;
(w) any Investment acquired by virtue of any Bail-in Action with respect to any Lender;
(x) additional Investments not otherwise permitted under this Section 6.06; provided that, (i) immediately before and immediately after giving pro forma effect to any such Investments, no Default or Event of Default shall have occurred and be continuing and (ii) the Total Net Leverage Ratio of the Borrower, calculated on a pro forma basis for the most recent Measurement Period, shall not exceed 1.502.50 to 1.00 and provided further, that Investments of Loan Parties in Restricted Subsidiaries that are not Loan Parties shall not be permitted to be made pursuant to this Section 6.06(x); and
(y) any Investment in respect of the Spin-Off Transactions to the extent (i) described in the Registration Statement or (ii) otherwise disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the Closing Date and (x) filed by the Borrower with the SEC and/or (y) obtained by the Company or the Borrower from the IRS.; and
(z) any Investment related to cash pooling, cash management and similar arrangements of the Borrower and its Restricted Subsidiaries consistent with past practice; provided that the aggregate outstanding Investments by the Loan Parties in any Persons other than Loan Parties under this clause (z) shall not exceed $75,000,000 at any time.
SECTION 6.07. Restricted Payments. Declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests (other than, with respect to the Borrower, any Permitted Convertible Indebtedness, any Permitted Bond Hedge Transactions or any Permitted Warrant Transactions) now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent Persons thereof) or permit any of its Restricted Subsidiaries to do any of the foregoing (collectively, “Restricted Payments”), except that, so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) the Borrower may (i) declare and pay dividends and distributions payable in its common stock and purchase, redeem, retire, defease or otherwise acquire shares of its Equity Interests with the proceeds received contemporaneously from the issue of new shares of its Equity Interests with equal or inferior voting powers, designations, preferences and rights, and (ii) declare and pay dividends and distributions in cash and purchase, redeem, retire, defease or otherwise acquire Equity Interests with cash and notes in an aggregate amount not to exceed in any Fiscal Year $52,000,00075,000,000 (in each case, with 50.0% of unused amounts in any Fiscal Year thereafter being permitted to be carried over to the immediately succeeding Fiscal Year);
(b) any Restricted Subsidiary of the Borrower may (i) declare and make Restricted Payments to the Borrower and (ii) declare and make Restricted Payments to any Restricted Subsidiary of the Borrower of which it is a Restricted Subsidiary; provided that, if such Restricted Subsidiary declaring and making Restricted Payments is not Wholly-Owned, the Borrower or the Restricted Subsidiary of the Borrower which owns Equity Interests in the Restricted Subsidiary making such Restricted Payments shall receive at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Restricted Subsidiary making such Restricted Payments) unless its then shareholders, members or partners are required under applicable Law to receive a greater proportionate share thereof;
(c) the Borrower or any of its Restricted Subsidiaries may purchase, redeem, retire, defease or otherwise acquire Equity Interests in any Restricted Subsidiary;
(d) Restricted Payments made to purchase, redeem or settle the Equity Interests of the Borrower (including related stock appreciation rights or similar securities) held by present or former directors, officers, employees or consultants of the Borrower or any Restricted Subsidiaries upon any such Person’s death, disability, retirement or termination of employment or under the terms of any benefit plan or any other agreement under which such shares of stock or related rights were issued in an aggregate amount not to exceed $15,000,000 in any Fiscal Year;
(e) non-cash repurchases of Equity Interests deemed to occur upon the exercise or settlement of stock options, stock appreciation rights, restricted stock units, warrants or other convertible or exchangeable securities or other Equity Interests if such Equity Interests represent a portion of the exercise price of, or withholding obligation with respect to, such options, stock appreciation rights, restricted stock units, warrants or other convertible or exchangeable securities or other Equity Interests;
(f) Restricted Payments to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such Person;
(g) withholding tax payments made on behalf of present or former directors, officers, employees or consultants, or any beneficiary thereof following the death of any such Person, in connection with the exercise by such Persons of stock options or other rights to purchase Equity Interests or the vesting of restricted Equity Interests (including any repurchase of restricted Equity Interests representing the holder’s tax liability in connection with the vesting thereof);
(h) additional Restricted Payments not otherwise permitted under this Section 6.07 in an aggregate amount not to exceed in the aggregate, at the time of the making thereof, the sum of (A) the greater of (x) $50,000,000 and (y) 1.5% of the Consolidated Net Tangible Assets and (B) 50.0% of the amount (if positive) of Consolidated Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing Date occurred to and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which Consolidated financial statements of the Borrower and its Subsidiaries pursuant to Section 5.12(b) or (c) have been delivered (treated as one accounting period);
(i) the Borrower or any of its Restricted Subsidiaries may make Consolidated Tax Payments; and
(j) any Restricted Payments in respect of the Spin-Off Transactions to the extent (i) described in the Registration Statement or (ii) otherwise disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the Closing Date and (x) filed by the Borrower with the SEC and/or (y) obtained by the Company or the Borrower from the IRS.; and
(k) additional Restricted Payments not otherwise permitted under this Section 6.07; provided that, (i) immediately before and immediately after giving pro forma effect to any such Restricted Payments, no Default or Event of Default shall have occurred and be continuing and (ii) the Total Net Leverage Ratio of the Borrower, calculated on a pro forma basis for the most recent Measurement Period, shall not exceed 1.25 to 1.00.
Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 6.07 will not prohibit any Restricted Payment within sixty (60) days after the date of declaration thereof or the giving of notice with respect thereto, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment would have complied with the provisions of this Section 6.07 (it being understood that such Restricted Payment shall be deemed to have been made on the date of declaration or notice for purposes of such provision).
Notwithstanding the foregoing, and for the avoidance of doubt, (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on, or required payment of any interest with respect to, any Permitted Convertible Indebtedness, in each case, in accordance with the terms of the indenture or other instrument governing such Permitted Convertible Indebtedness, shall not constitute a Restricted Payment; provided that, to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Indebtedness (excluding any required payment of interest with respect to such Permitted Convertible Indebtedness and excluding any payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (b) such conversion or payment does not trigger or correspond to an exercise or early unwind or settlement of a corresponding portion of the Permitted Bond Hedge Transactions relating to such Permitted Convertible Indebtedness (including, for the avoidance of doubt, the case where there is no Permitted Bond Hedge Transaction relating to such Permitted Convertible Indebtedness), the payment of such excess cash shall constitute a Restricted Payment notwithstanding this clause (i); and (ii) any required payment with respect to, or required early unwind or settlement of, any Permitted Bond Hedge Transaction or Permitted Warrant Transaction, in each case, in accordance with the terms of the agreement governing such Permitted Bond Hedge Transaction or Permitted Warrant Transaction shall not constitute a Restricted Payment; provided that, to the extent cash is required to be paid under a Permitted Warrant Transaction as a result of the election of “cash settlement” (or substantially equivalent term) as the “settlement method” (or substantially equivalent term) thereunder by the Borrower (or its Affiliate) (including in connection with the exercise and/or early unwind or settlement thereof), the payment of such cash shall constitute a Restricted Payment notwithstanding this clause (ii).
Notwithstanding the foregoing, the Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Indebtedness by delivery of shares of the Borrower’s common stock and/or a different series of Permitted Convertible Indebtedness (which series (x) matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the analogous date under the indenture or other instrument governing the Permitted Convertible Indebtedness that is so repurchased, exchanged or converted and (y) has terms, conditions and covenants that are no less favorable to the Borrower than the Permitted Convertible Indebtedness that is so repurchased, exchanged or converted (as determined by the board of directors of the Borrower, or a committee thereof, in good faith)) (any such series of Permitted Convertible Indebtedness, “Refinancing Convertible Notes”) and/or by payment of cash (in an amount that does not exceed the proceeds received by the Borrower from the substantially concurrent issuance of shares of the Borrower’s common stock and/or Refinancing Convertible Notes plus the net cash proceeds, if any, received by the Borrower pursuant to the related exercise or early unwind or termination of the related Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, pursuant to the immediately following proviso); provided that, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Indebtedness that is so repurchased, exchanged or converted, the Borrower shall (and, for the avoidance of doubt, shall be permitted under this Section 6.07 to) exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the portion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, corresponding to such Permitted Convertible Indebtedness that is so repurchased, exchanged or converted.
SECTION 6.08. Accounting Changes. Make or permit any change in the Fiscal Year of the Borrower or its Restricted Subsidiaries without (a) providing the Administrative Agent with prior written notice of such change; and (b) executing and delivering to the Administrative Agent, prior to such change, such amendments to this Agreement and the other Loan Documents as the Required Lenders may reasonably deem necessary and appropriate as a result of such change in Fiscal Year.
SECTION 6.09. Speculative Transactions. Enter into, or permit any Restricted Subsidiary of the Borrower to enter into, any Hedge Agreement unless such Hedge Agreement is incurred to hedge bona fide business risks and not for speculative purposes.
SECTION 6.10. Anti-Corruption; Anti-Money Laundering; Sanctions Laws and Regulations.
(a) Engage in any transaction, or knowingly permit any of its Restricted Subsidiaries to engage in any transaction, that violates applicable Sanctions Laws and Regulations.
(b) Use any funding or proceeds from this Agreement (or lend, contribute or otherwise make any such funding or proceeds available to any Subsidiary, joint venture partner or other person):
(i) in connection with any transaction relating directly or indirectly to any Designated Person or in a Sanctioned Country, in each case to the extent such transaction would violate Sanctions Laws and Regulations; or
(ii) in violation of applicable Anti-Money Laundering Laws, Anti-Corruption Laws or applicable Sanctions Laws and Regulations, or in a manner that causes any Lender to violate any applicable Sanctions Laws and Regulations.
(c) Permit any of the funds or assets of the Borrower that are used to repay or prepay any credit facility under this Agreement to constitute property of, or to be beneficially owned by, any Designated Person, or be directly obtained or derived from transactions with or relating to countries subject to U.S., EU or United Kingdom economic sanctions, in each case in any manner that would result in a violation of applicable Sanctions Laws and Regulations or that violate any applicable Anti-Corruption Laws or any applicable Anti-Money Laundering Laws.
SECTION 6.11. Prepayments, Etc. of Junior Financing; Amendments.
(a) Make any voluntary or optional prepayment or redemption, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any Junior Financing (it being understood that payments of regularly scheduled interest and principal shall be permitted), or make any payment in violation of any subordination terms of any Junior Financing documentation, except:
(i) any prepayment, redemption, purchase, defeasement or other satisfaction of Junior Financing made so long as (A) immediately before and immediately after giving pro forma effect to any such prepayment, redemption, purchase, defeasement or other satisfaction, no Default or Event of Default shall have occurred and be continuing and (B) the Total Net Leverage Ratio of the Borrower, calculated on a pro forma basis for the most recent Measurement Period, shall not exceed 2.50 to 1.00;
(ii) the conversion of any Junior Financing to Equity Interests (that do not constitute Debt) of the Borrower or any prepayment, redemption, purchase, defeasement or other satisfaction of any Junior Financing made with the proceeds of any issuance of any Equity Interests (that do not constitute Debt) of the Borrower;
(iii) indemnity and expense reimbursement payments;
(iv) the refinancing of any Junior Financing with any Permitted Refinancing thereof;
(v) the payment and prepayment, redemption, purchase, defeasement or other satisfaction prior to the scheduled maturity of any Junior Financing, in an aggregate amount not to exceed the greater of (A) $125,000,000155,000,000 and (B) 5.0% of the Consolidated Net Tangible Assets; provided that immediately before and immediately after giving pro forma effect to any such payment, prepayment, redemption, purchase, defeasement or other satisfaction, no Default or Event of Default shall have occurred and be continuing;
(vi) payments of the minimum amount needed to prevent any Junior Financing from being treated as an “applicable high yield discount obligation”; and
(vii) payments of Junior Financing payable to the Company and/or its Subsidiaries in connection with the Spin-Off Transactions.
(b) Amend or modify any term or condition of any documentation related to Junior Financing with an outstanding principal amount in excess of $75,000,000 in any manner that is, taken as a whole, materially adverse to the interests of the Lenders.
SECTION 6.12. Financial Covenants.
(a) Total Net Leverage Ratio. Permit the Total Net Leverage Ratio, as of the last day of each Fiscal Quarter ending after the Closing Date, for each Measurement Period ended as of such Fiscal Quarter, to exceed 3.003.25:1.00; provided that, with respect to any period occurring on or after the second full Fiscal Quarter ending after the Closing Date, to the extent that (i) the Borrower or any of its Restricted Subsidiaries consummates, during any period of four Fiscal Quarters for which financial statements are available, one or more acquisitions for which the aggregate consideration, including assumed Debt, for all such acquisitions, is $100,000,000 or more and (ii) within 30 days of consummating such acquisition or acquisitions referred to in clause (i) of this proviso, the Borrower notifies the Administrative Agent that the Borrower elects to increase the maximum Total Net Leverage Ratio threshold as a result thereof, then (i) the maximum Total Net Leverage Ratio threshold for the Fiscal Quarter in which such election is made by the Borrower and the immediately following Fiscal Quarter (unless earlier terminated by the Borrower by written notice to the Administrative Agent) shall be increased to 3.50:1.00 and (ii) the maximum Total Net Leverage Ratio threshold for the next two immediately succeedingthree Fiscal Quarters (unless earlier terminated by the Borrower by written notice to the Administrative Agent) shall be increased to 3.23.75:1.00 (such period of four Fiscal Quarters, subject to any such earlier termination, an “Acquisition Holiday Period”). The Borrower may not make such election unless at least one full Fiscal Quarter has ended following the end of the most recently completed Acquisition Holiday Period (if any) and the Borrower may not make more than two such elections during the term of this Agreement.
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio, as of the last day of each Fiscal Quarter ending after the Closing Date, for each Measurement Period ended as of such Fiscal Quarter, to be less than 3.00:1.00.
(c) The provisions of this Section 6.12 are for the benefit of the Lenders under the Financial Covenant Facilities only, as provided in Section 7.01(c).
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events (each, an “Event of Default”) shall occur and be continuing:
(a) (i) the Borrower shall fail to pay, in the currency required hereunder, any principal of any Loan when the same shall become due and payable or (ii) the Borrower shall fail to pay, in the currency required hereunder, any interest on any Loan, or any Loan Party shall fail to make any other payment, in the currency required hereunder, under any Loan Document, in each case under this clause (ii), within three Business Days after the same shall become due and payable; or
(b) any representation or warranty made by any Loan Party (or any of its Responsible Officers) herein or in any other Loan Document, or contained in any certificate, document or other written statement by any Loan Party (or any of its Responsible Officers), furnished at any time pursuant to this Agreement or in or under any other Loan Document, shall prove to have been incorrect in any material respect when made or deemed made; or
(c) any Loan Party shall fail to perform or observe any term, covenant or agreement contained in Section 5.05 (with respect to the continued legal existence of the Borrower), Section 5.09, Section 5.11, Section 5.12(a) or Article VI (provided that, notwithstanding anything in any Loan Document to the contrary, a breach of a Financial Covenant shall not constitute an Event of Default with respect to any Incremental Term B Loans or Permitted Refinancing Term Loans, unless the Borrower shall agree that such Incremental Term B Loans or Permitted Refinancing Term Loans shall have the benefit of the Financial Covenants hereunder in the documentation in respect thereof, Incremental Term B Loans or Permitted Refinancing Term Loans, unless and until the Required Financial Covenant Lenders (or the Administrative Agent on their behalf) have declared all amounts outstanding under the Financial Covenant Facilities to be due and payable and all outstanding Commitments under the Financial Covenant Facilities to be terminated, in each case in accordance with this Agreement as a result of such breach, and such declaration has not been rescinded) (any such Event of Default with respect to a Financial Covenant, a “Financial Covenant Event of Default”); or
(d) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for 30 days after the earlier of the date upon which (i) a Responsible Officer becomes aware of such failure or (ii) written notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(e) any Loan Party or any of its Restricted Subsidiaries shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Debt of such Loan Party or such Restricted Subsidiary (as the case may be) that is outstanding in a principal amount (or, in the case of any Hedge Agreement, an Agreement Value) of at least $75,000,000 either individually or in the aggregate for all such Loan Parties and Restricted Subsidiaries (but excluding Debt outstanding hereunder), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; provided that none of the following events shall constitute an Event of Default under this clause (e): (A) secured Debt that becomes due as a result of the voluntary sale, or a transfer of the property or assets securing such Debt, or a casualty, condemnation or similar event, in each case so long as such Debt is repaid in accordance with its terms, (B) any change of control offer made within 60 days after a Permitted Acquisition with respect to Debt assumed in connection with such Permitted Acquisition unless such event results in the acceleration of such Debt, (C) any default under Debt of an acquired business assumed in connection with a Permitted Acquisition if such default is cured, or such Debt is repaid, within 60 days after consummation of such Permitted Acquisition so long as no other creditor accelerates or commences any kind of enforcement action in respect of such Debt, (D) any mandatory prepayment requirement in any agreement arising from the receipt of net cash proceeds from Debt, dispositions (including casualty losses, governmental takings and other involuntary dispositions), equity issuances or excess cash flow so long as, in each case, no default or event of default occurs under such agreement in connection with such mandatory prepayment requirement, (E) prepayments required by the terms of applicable Debt as a result of customary provisions in respect of illegality, replacement of lenders and gross-up provisions for Taxes, increased costs, capital adequacy and other similar customary requirements (in each case, to the extent any such circumstance would not give rise to an Event of Default), (F) any voluntary prepayment, redemption or other satisfaction of Debt that becomes mandatory in accordance with the terms of such Debt solely as the result of the delivery by the Borrower or any Restricted Subsidiary of a prepayment, redemption or similar notice with respect to such prepayment, redemption or other satisfaction and (G) any redemption, exchange, repurchase, conversion or settlement with respect to any Permitted Convertible Indebtedness, or satisfaction of any condition giving rise to or permitting the foregoing, pursuant to their terms unless such redemption, repurchase, conversion or settlement results from a default thereunder or an event of the type that constitutes an Event of Default; or
(f) any Loan Party or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) shall generally not pay its debts as such debts become due (subject to applicable grace periods), or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) seeking to adjudicate it a bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of such Loan Party or Restricted Subsidiary or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors (including any Debtor Relief Laws), or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it) that is being diligently contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any Loan Party or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) shall take any corporate action to authorize any of the actions set forth in this clause (f); or
(g) any judgments or orders, either individually or in the aggregate, for the payment of money in excess of $75,000,000 shall be rendered against any Loan Party or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) any nonmonetary judgment or order shall be rendered against any Loan Party or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) that could be reasonably likely to have a Material Adverse Effect, and there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(i) a Change of Control shall occur; or
(j) any ERISA Event or Foreign Plan Event shall have occurred with respect to a Plan or Foreign Plan that could reasonably be expected to have a Material Adverse Effect; or
(k) (i) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), could reasonably be expected to have a Material Adverse Effect, or (ii) any Loan Party 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 which could reasonably be expected to result in liability of any Loan Party or any ERISA Affiliate in an amount which could reasonably be expected to have a Material Adverse Effect; or
(l) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or is being terminated, within the meaning of Title IV of ERISA, and as a result of such insolvency or termination the aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then insolvent or 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 insolvency or termination occurs by an amount that could reasonably be expected to have a Material Adverse Effect; or
(m) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms, or the Borrower or any Subsidiary shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms (other than, in each case, the termination or expiration of any Loan Documents in accordance with their terms); or
(n) any Collateral Document shall for any reason (except to the extent any loss of perfection or priority results solely from (i) the Administrative Agent no longer having possession of certificates actually delivered to it representing equity interests pledged under any Loan Document or (ii) a UCC filing having lapsed because a UCC continuation statement was not filed in a timely manner) fail to create a valid and perfected first priority security interest (subject to Permitted Liens) in any material portion of the Collateral purported to be covered thereby, except as permitted by the terms of any Loan Document; provided that, if any provision of any Collateral Document fails to be in full force and effect or ceases to create a valid and perfected lien, with the priority set forth in the Loan Documents, on a material portion of the Collateral covered thereby resulting solely from the circumstances described in the foregoing clause (i) or (ii), no Event of Default shall result until the Borrower becomes aware of such failure and such failure continues for fifteen (15) days after the Borrower’s knowledge of such failure.
SECTION 7.02. Remedies Upon an Event of Default.
(a) If an Event of Default occurs (other than an event with respect to the Borrower described in Section 7.01(f) and other than a Financial Covenant Event of Default), and at any time thereafter during the continuance of such Event of Default, the Administrative Agent may with the consent of the Required Lenders, and shall at the request of the Required Lenders, by notice to the Borrower, take any or all of the following actions, at the same or different times:
(i) terminate the Commitments and thereupon the Commitments shall terminate immediately;
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Secured Obligations of the Loan Parties accrued hereunder and under any other Loan Document, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind (except as otherwise required by the Loan Documents), all of which are hereby waived by the Borrower;
(iii) require that the Borrower provide Cash Collateral as required in Section 2.06(o); and
(iv) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents and applicable Law.
(b) If an Event of Default described in Section 7.01(f) occurs with respect to the Borrower, the Commitments shall automatically terminate and the principal of the Loans then outstanding and cash collateral for the L/C Obligations, together with accrued interest thereon and all fees and other Secured Obligations accrued hereunder and under any other Loan Document, shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as provided in Section 7.02(a)(iii) above shall automatically become effective, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
(c) If any Financial Covenant Event of Default shall have occurred and be continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Financial Covenant Lenders (take any of the actions specified under Sections 7.02(a)(i) through (iv) above, but solely with respect to the Financial Covenant Facilities (subject to Section 7.02(e) below).
(d) If any Financial Covenant Event of Default shall have occurred and be continuing and the Required Financial Covenant Lenders (or the Administrative Agent on their behalf) have declared all amounts outstanding under the Financial Covenant Facilities to be due and payable and all outstanding Commitments under the Financial Covenant Facilities to be terminated, in each case in accordance with this Agreement as a result of such breach, and such declaration has not been rescinded, then the Administrative Agent shall, at the request of, or may, with the consent of, the Required Term B Lenders (i) declare the unpaid principal amount of all outstanding Term B Loans and/or, unless the Borrower shall agree that such Incremental Term B Loans or Permitted Refinancing Term Loans shall have the benefit of the Financial Covenants hereunder in the documentation in respect thereof, Incremental Term B Loans and/or Permitted Refinancing Term Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document in each case to the applicable Lenders to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and (ii) exercise, on behalf of itself and the Term B Lenders, all rights and remedies available to it and the Term B Lenders under the Loan Documents (subject to Section 7.02(e) below).
(e) Notwithstanding Sections 7.02(c) and (d) above, in the event that after a Financial Covenant Event of Default both (i) all amounts outstanding under the Revolving Credit Facility and the Term A Loans, respectively, have been declared due and payable, and all commitments thereunder terminated, pursuant to Section 7.02(c) above and (ii) all amounts outstanding with respect to the Term B Loan facility and, unless the Borrower shall agree that Incremental Term B Loans or Permitted Refinancing Term Loans shall have the benefit of the financial covenants hereunder in the documentation in respect thereof, any Incremental Term B Loans and Permitted Refinancing Term Loans have been declared due and payable pursuant to Section 7.02(d) above, then in such case the exercise of rights and remedies under the Loan Documents shall be conducted pursuant to Section 7.02(a).
SECTION 7.03. Application of Payments. Notwithstanding anything herein to the contrary, following the occurrence and during the continuance of an Event of Default, and notice thereof to the Administrative Agent by the Borrower or the Required Lenders:
(a) all payments received on account of the Secured Obligations shall, subject to Section 2.22, be applied by the Administrative Agent as follows:
(i) first, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts payable to the Administrative Agent (including fees and disbursements and other charges of counsel to the Administrative Agent payable under Section 9.03 and amounts pursuant to Section 2.12(b) payable to the Administrative Agent in its capacity as such);
(ii) second, to payment of that portion of the Secured Obligations constituting fees, expenses, indemnities and other amounts (other than principal, reimbursement obligations in respect of L/C Disbursements, interest and Letter of Credit Fees) payable to the Lenders, the L/C Issuers and the other Secured Parties (including fees and disbursements and other charges of counsel to the Lenders and the L/C Issuers payable under Section 9.03) arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause (ii) payable to them;
(iii) third, to payment of that portion of the Secured Obligations constituting accrued and unpaid Letter of Credit Fees and charges and interest on the Loans and unreimbursed L/C Disbursements, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause (iii) payable to them;
(iv) fourth, (A) to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans and unreimbursed L/C Disbursements, (B) to Cash Collateralize that portion of L/C Obligations comprising the undrawn amount of Letters of Credit to the extent not otherwise cash collateralized by the Borrower pursuant to Section 2.06 or 2.22; provided that (x) any such amounts applied pursuant to subclause (B) above shall be paid to the Administrative Agent for the account of the L/C Issuers to Cash Collateralize Secured Obligations in respect of Letters of Credit, (y) subject to Section 2.06 or 2.22, amounts used to Cash Collateralize the aggregate amount of Letters of Credit pursuant to this clause (iv) shall be used to satisfy drawings under such Letters of Credit as they occur and (z) upon the expiration of any Letter of Credit (without any pending drawings), the pro rata share of cash collateral shall be distributed to the other Secured Obligations, if any, in the order set forth in this Section 7.03 and (C) to any other amounts owing with respect to Banking Services Obligations and Swap Obligations, in each case, ratably among the Lenders and the L/C Issuers and any other applicable Secured Parties in proportion to the respective amounts described in this clause (iv) payable to them;
(v) fifth, to the payment in full of all other Secured Obligations, in each case ratably among the Administrative Agent, the Lenders, the L/C Issuers and the other Secured Parties based upon the respective aggregate amounts of all such Secured Obligations owing to them in accordance with the respective amounts thereof then due and payable; and
(vi) finally, the balance, if any, after all Secured Obligations have been paid in full, to the Borrower or as otherwise required by law; and
(b) if any amount remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired (without any pending drawings), such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, other than with respect to any such Swap Obligations and Banking Services Obligations held by the Lender acting as Administrative Agent (or any Affiliate thereof), Secured Obligations arising under Swap Obligations and Banking Services Obligations shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the holder of the Swap Obligations or Banking Services Obligations, as the case may be. Each holder of Swap Obligations or Banking Services Obligations not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VIII for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE VIII
The Administrative Agent
SECTION 8.01. Authorization and Action.
(a) Each Lender and each L/C Issuer hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and permitted assigns to serve as the administrative agent and collateral under the Loan Documents and each Lender and each L/C Issuer authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender and each L/C Issuer hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents.
(b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as potential holders of Swap Obligations and Banking Services Obligations) and each of the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Section 8.01 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.04, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
(c) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender and each L/C Issuer; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the L/C Issuers with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable Law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided further that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any of its Subsidiaries or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the L/C Issuers (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:
(i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, any L/C Issuer or any other Secured Party other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable Law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender and L/C Issuer agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and/or the transactions contemplated hereby;
(ii) [reserved];
(iii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender or L/C Issuer for any sum or the profit element of any sum received by the Administrative Agent for its own account; and
(iv) the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions (and, without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment of Loans, or disclosure of confidential information, to any Disqualified Institution).
(e) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article VIII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
(f) None of the Syndication Agent, any Co-Documentation Agent, any Bookrunner or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
(g) In case of the pendency of any proceeding with respect to any Loan Party under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim under Sections 2.06, 2.12, 2.13, 2.15, 2.17 and 9.03) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each L/C Issuer and each other Secured 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 Lenders, the L/C Issuer or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or L/C Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender or L/C Issuer in any such proceeding.
(h) Each Lender and L/C Issuer hereby authorizes the Administrative Agent to enter into one or more intercreditor agreements acceptable to the Administrative Agent in its reasonable discretion with parties to any Receivables Facility permitted by this Agreement. Such intercreditor agreements may provide for, among other things, (i) the Administrative Agent’s and the Lenders’ forbearance of, and other limitations on, any exercise of remedies in respect of any equity interests in any Receivables Subsidiary and/or any notes issued by any Receivables Subsidiary to any Receivables Seller in connection with any such Receivables Facility, in any case, that have been pledged to secure the Secured Obligations and/or (ii) disclaimers of interests on, and releases of security interests in, any Receivables Assets. Each Lender and L/C Issuer hereby further authorizes the Administrative Agent to enter into one or more intercreditor agreements acceptable to the Administrative Agent in its reasonable discretion in connection with incurrence of secured Incremental Equivalent Debt, Permitted Refinancing thereof or Permitted Credit Agreement Refinancing Debt.
(i) The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and, except solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article VIII, neither the Borrower nor any of its Subsidiaries, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article VIII.
SECTION 8.02. Administrative Agent’s Reliance, Indemnification, Etc.
(a) Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Loan Documents (x) with the consent of or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by facsimile, emailed .pdf or any other electronic means that reproduces an image of an actual executed signature page) or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
(b) The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent or (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any claim, liability, loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or any L/C Issuer as a result of, any determination of the Credit Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or L/C Issuer or any Dollar Amount thereof.
(c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such promissory note has been assigned in accordance with Section 9.04, (ii) shall rely on the Register to the extent set forth in Section 9.04(b), (iii) may consult with legal counsel (including counsel to the Borrower), independent public accountants and other experts selected by it in its commercially reasonable judgment, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or L/C Issuer and shall not be responsible to any Lender or L/C Issuer for any statements, warranties or representations made by or on behalf of any Loan Party in connection with this Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, may presume that such condition is satisfactory to such Lender or L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or L/C Issuer sufficiently in advance of the making of such Loan or the issuance of a Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and reasonably and in good faith believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
SECTION 8.03. Posting of Communications.
(a) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the L/C Issuers by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other similar electronic platform chosen by the Administrative Agent reasonably and in good faith to be its electronic transmission system and used by it for such purpose with respect to its credit facilities generally (the “Approved Electronic Platform”).
(b) Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Closing Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the L/C Issuers and the Borrower acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender or L/C Issuers that are added to the Approved Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, the L/C Issuers and the Borrower hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution, other than risks arising from the gross negligence, bad faith or willful misconduct of any of the foregoing parties (as determined by a court of competent jurisdiction in a final and nonappealable judgment).
(c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY BOOKRUNNER, ANY ARRANGER, THE SYNDICATION AGENT, ANY CO-DOCUMENTATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY L/C ISSUER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM, OTHER THAN DIRECT OR ACTUAL DAMAGES ARISING FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF ANY APPLICABLE PARTY (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION BY A FINAL AND NONAPPEALABLE JUDGMENT).
(d) Each Lender and L/C Issuer agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender or L/C Issuer for purposes of the Loan Documents. Each Lender and L/C Issuer agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or L/C Issuer’s email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(e) Each of the Lenders, the L/C Issuers and the Borrower agrees that the Administrative Agent may, but (except as may be required by applicable Law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
(f) Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any L/C Issuer to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
SECTION 8.04. The Administrative Agent Individually. With respect to its Commitment and Loans, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or L/C Issuer. The terms “L/C Issuers”, “Lenders”, “Required Lenders”, “Required Financial Covenant Lenders”, “Required Term A Lenders”, “Required Term B Lenders”, “Required Revolving Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Lender or an L/C Issuer or as one of the Required Lenders, the Required Financial Covenant Lenders, the Required Term A Lenders, the Required Term B Lenders or the Required Revolving Lenders, as applicable. The Person serving as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, the Borrower, any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Lenders or the L/C Issuers.
SECTION 8.05. Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the L/C Issuers and the Borrower, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld and shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents.
(b) Notwithstanding paragraph (a) of this Section, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the L/C Issuers and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers 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 (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and each L/C Issuer. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article VIII and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, 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 and in respect of the matters referred to in the proviso under clause (i) above.
SECTION 8.06. Acknowledgements of Lenders and L/C Issuers.
(a) Each Lender and L/C Issuer represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or L/C Issuer, in each case in the ordinary course of business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender and L/C Issuer agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without reliance upon the Administrative Agent, any Bookrunner, any Arranger, the Syndication Agent, any Co-Documentation Agent or any other Lender or L/C Issuer, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or L/C Issuer, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender and L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Bookrunner, any Arranger, the Syndication Agent, any Co-Documentation Agent or any other Lender or L/C Issuer, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b) Each Lender, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date.
SECTION 8.07. Recovery of Erroneous Payment.
Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender Recipient Party, whether or not in respect of an Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender Recipient Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender Recipient Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, 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. Each Lender Recipient Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Lender Recipient Party promptly upon determining that any payment made to such Lender Recipient Party comprised, in whole or in part, a Rescindable Amount.
SECTION 8.08. Collateral and Guaranty Matters. Each Secured Party irrevocably authorizes the Administrative Agent, at its option and in its discretion:
(a) to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the satisfaction of the Termination Date Conditions, (ii) that is sold or otherwise Disposed of or to be sold or otherwise Disposed of to any Person that is not and is not required to be a Loan Party as part of or in connection with any sale or other Disposition permitted hereunder or under any other Loan Document, (iii) that constitutes Excluded Assets or that is owned by an Excluded Subsidiary, (iv) if approved, authorized or ratified in writing in accordance with Section 9.02, or (v) pursuant to Section 9.20;
(b) to release any Guarantor from its obligations under the Guaranty (i) upon the satisfaction of the Termination Date Conditions, (ii) if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Loan Documents, (iii) if such Subsidiary constitutes an Excluded Subsidiary or is otherwise no longer obligated to be a Guarantor pursuant to Section 5.10 hereof, provided that an existing Guarantor shall not be released from its Guaranty and shall not be considered an Excluded Subsidiary solely as a result of such Guarantor becoming a non-Wholly-Owned Subsidiary if as a result of (A) a Disposition or issuance of Equity Interests of such Subsidiary, in either case, to a person that is an Affiliate of the Borrower or (B) any transaction entered into primarily for the purpose of such Subsidiary ceasing to constitute a Guarantor; (iv) if approved, authorized or ratified in writing in accordance with Section 9.02, or (v) pursuant to Section 9.20; and
(c) to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.01(c).
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 8.08. In each case as specified in this Section 8.08, the Administrative Agent will, at the Borrower’s expense, promptly execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 8.08.
The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
SECTION 8.09. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of 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 such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not 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 or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
SECTION 8.10. Withholding Taxes. To the extent required by any applicable Law, the Administrative Agent may withhold in respect of any payment to any Lender the amount of any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, all Taxes and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax in respect of any amounts paid to or for the account of such Lender for any reason (including because the appropriate documentation was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective), whether or not such Taxes are correctly or legally asserted. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply all amounts at any time owing to such Lender under this Agreement, any other Loan Document or otherwise against any amount due the Administrative Agent under this Section 8.10. The agreements in this Section 8.10 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of all other Secured Obligations. For the avoidance of doubt, for purposes of this Section 8.10, the term “Lender” shall include any L/C Issuer and any Swingline Lender.
SECTION 8.11. Credit Bidding. The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02), (iii) the Administrative Agent shall be authorized to assign the relevant Secured Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Secured Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action and (iv) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
SECTION 8.12. Swap Obligations and Banking Services Obligations. No Lender or Affiliate thereof in its capacity as a holder of Swap Obligations or Banking Services Obligations that obtains the benefits of Section 7.03, the Guaranty or any Collateral by virtue of the provisions hereof or of the Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article VIII to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Swap Obligations and Banking Services Obligations unless the Administrative Agent has received written notice of such Swap Obligations or Banking Services Obligations, as applicable, together with such supporting documentation as the Administrative Agent may request, from the applicable Lender or Affiliate thereof, as the case may be.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(i) if to the Borrower or any other Loan Party, to it at:
PHINIA Inc.
3000 University Drive
Auburn Hills, Michigan 48326
Attention: Gordon Muir, Vice President and Treasurer
Telephone: (248) 754-9200
Electronic Mail: gmuir@phinia.com
(ii) if to the Administrative Agent:
Administrative Agent’s Office
(for payments, Borrowing Requests and Interest Election Requests):
Bank of America, N.A.
Dedicated Servicing
Dallas Infomart – 1950 N Stemmons Fwy Ste 6053
Mail Code: TX1-160-06-02
Dallas, TX 75207
Attention: Kesha Martinez
Telephone: +1.469.201.8836
Electronic Mail: kesha.martinez@bofa.com
Account No.: 1366072250600
Ref: Wire Clearing Acct for Syn Loans – LIQ
ABA# 026009593
Revolving Loan Assignment Consents
(for approving assignments of Revolving Loans):
Bank of America, N.A.
Enterprise Credit
Bank of America Tower Chicago, 110 N Wacker Dr
Mail Code: IL4-110-14-10
Chicago, IL 60606-1511
Attention: Brian Lukehart
Telephone: +1.312.828.6883
Facsimile: +1.312.828.5140
Electronic Mail: brian.lukehart@bofa.com
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Gateway Village – 900 Building, 900 W Trade St
Mail Code: NC1-026-06-03
Charlotte, NC 28255-0001
Attention: Erik Truette
Telephone: +1.980.387.5451
Electronic Mail: erik.m.truette@bofa.com
(iii) if to Bank of America as an L/C Issuer:
Bank of America, N.A.
Trade Operations
1 Fleet Way
Mail Code: PA6-580-02-30
Scranton, PA 18507
Attention: Trade Client Service Team
Telephone: +1.570.496.9619
Facsimile: +1.800.755.8740
Electronic Mail: tradeclientserviceteamus@bofa.com
(iv) if to Bank of America as the Swingline Lender:
Bank of America, N.A.
Dedicated Servicing
Dallas Infomart – 1950 N Stemmons Fwy Ste 6053
Mail Code: TX1-160-06-02
Dallas, TX 75207
Attention: Kesha Martinez
Telephone: +1.469.201.8836
Electronic Mail: kesha.martinez@bofa.com
Account No.: 1366072250600
Ref: Wire Clearing Acct for Syn Loans – LIQ
ABA# 026009593
(v) if to JPMorgan Chase Bank, N.A. as an L/C Issuer:
JPMorgan Chase Bank, N.A.
131 S Dearborn St, Floor 04
Chicago, IL, 60603-5506
Attention: LC Agency Team
Tel: 800-364-1969
Fax: 856-294-5267
Email: chicago.lc.agency.activity.team@jpmchase.com
With a copy to:
JPMorgan Chase Bank, N.A.
131 S Dearborn St, Floor 04
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing
Email: jpm.agency.cri@jpmorgan.com
(vi) if to PNC Bank, National Association as an L/C Issuer:
PNC Bank, National Association
755 W. Big Beaver Road, Ste 2500
Troy, MI 48084
Mail Code: R1-YB94-25-1
Attn: Scott Neiderheide
Tel: 248-729-8580
Fax: 248-729-8820
(vii) if to Wells Fargo Bank, National Association as an L/C Issuer
Wells Fargo Bank, National Association
Telephone: (800) 776-3862, OPTION 2
Facsimile: (844) 879-2898
Attention: STANDBY LC OPERATIONS
Email: STANDBYCUSTOMERCASE@WELLSFARGO.COM and
STANDBYLC@WELLSFARGO.COM
(viii) if to U.S. Bank National Association as an L/C Issuer
U.S. Bank National Association
400 City Center
Oshkosh, Wisconsin 54901
Telephone: 920-237-7601
Facsimile: 920-237-7993
Email: CLSSyndicationServicesTeam@usbank.com
(ix) if to Deutsche Bank AG New York Branch as an L/C Issuer
Deutsche Bank AG New York Branch
Attention: Leveraged Debt Capital Markets Standby Letters of Credit
One Columbus Circle
New York, NY 10019
Email: LDCM.SBLCS@db.com
(x) if to any other Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business dayBusiness Day for the recipient). Notices delivered through Approved Electronic Platforms, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
(b) Notices and other communications to the Borrower, any other Loan Party, the Lenders and the L/C Issuers hereunder may be delivered or furnished by using Approved Electronic Platforms pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
(c) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business dayBusiness Day for the recipient.
(d) Any party hereto may change its address, email address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.
SECTION 9.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, any L/C Issuer or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the L/C Issuers and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any L/C Issuer may have had notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.20 with respect to an Incremental Amendment, or as provided in Section 2.23 with respect to the extension of any Applicable Maturity Date, or as provided in Section 2.24 with respect to the Permitted Refinancing Loans, or as provided in Section 2.14, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender (provided that an amendment, modification, waiver or consent with respect to any condition precedent, covenant, mandatory prepayment, Event of Default or Default shall not constitute an increase in the Commitment of any Lender), (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby (except that (x) neither (A) any amendment or modification of the financial covenantsFinancial Covenants in this Agreement (or defined terms used in the financial covenantsFinancial Covenants in this Agreement) nor (B) any amendment entered into pursuant to the terms of Section 2.14(b) shall constitute a reduction in the rate of interest or fees for purposes of this clause (ii) even if the effect of such amendment or modification would be to reduce the rate of interest on any Loan or to reduce any fee payable hereunder and (y) only the consent of the Required Lenders shall be necessary to reduce or waive any obligation of the Borrower to pay interest or any other amount at the applicable default rate set forth in Section 2.13(c) or to amend Section 2.13(c)), (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby (it being understood and agreed that no amendment, modification or waiver of, or consent to departure from, any condition precedent, covenant, Default, Event of Default or mandatory prepayment, in any such case, shall be considered a postponement or delay of any date fixed for payment by this Agreement or any other Loan Document), (iv) change Section 2.09(e) or 2.18(b) or (d) in a manner that would alter the ratable reduction of Commitments or the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change the payment waterfall provisions of Section 2.22(b) or 7.03 without the written consent of each Lender, (vi) waive any condition set forth in Section 4.02 in respect of the making of a Revolving Loan without the written consent of the Required Revolving Lenders (it being understood and agreed that any amendment or waiver of, or any consent with respect to, any provision of this Agreement (other than any waiver expressly relating to Section 4.02) or any other Loan Document, including any amendment of any affirmative or negative covenant set forth herein or in any other Loan Document or any waiver of a Default or an Event of Default, shall not be deemed to be a waiver of a condition set forth in Section 4.02 for purposes of this Section 9.02), (vii) change any of the provisions of this Section or the definition of “Required Lenders”, “Required Financial Covenant Lenders”, “Required Revolving Lenders”, “Required Term A Lenders”, “Required Term B Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender directly affected thereby (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Amendment or Permitted Refinancing Amendment may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Loans are included on the Closing Date), (viii) (x) release the Borrower from its obligations under Article X, (y) [reserved] or (z) release all or substantially all of the Guarantors from their obligations under the Guaranty (other than in accordance with the terms of Section 8.08, 9.14 or 9.20), in each case, without the written consent of each Lender, (ix) [reserved], (x) except as provided in Section 8.08, 9.14 or 9.20 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, (xi) except as provided in Section 8.08, (x) subordinate, or have the effect of subordinating the Obligations to any other Debt or other obligation or (y) subordinate, or have the effect of subordinating, the Liens securing the Obligations to Liens securing any other Debt or other obligation, in each case, without the written consent of each Lender or (xii) amend Section 1.06 or the definition of “Agreed Currencies”, “Alternative Currency Daily Rate” or “Alternative Currency Term Rate” without the written consent of each Lender directly affected thereby; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of (x) the Administrative Agent, any L/C Issuer or any Swingline Lender hereunder without the prior written consent of the Administrative Agent, such L/C Issuer or such Swingline Lender, as the case may be (it being understood that any change to Section 2.22 shall require the consent of the Administrative Agent, each L/C Issuer and each Swingline Lender) or (y) an L/C Issuer under any Issuer Document relating to any Letter of Credit issued or to be issued by it without the prior written consent of such L/C Issuer. Notwithstanding the foregoing, (A) no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly and adversely affected by such amendment, waiver or other modification in a non-ratable manner; (B) as to any amendment, amendment and restatement or other modification otherwise approved in accordance with this Section, it shall not be necessary to obtain the consent or approval of any Lender that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Loans, so long as such Lender receives payment in full of the principal of and interest on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective and (C) any amendment, waiver or consent that changes the provisions of Section 6.12 (or any defined term used therein or in the definition of such defined terms) or waives an Event of Default with respect thereto, in each case, shall require only the written consent of the Required Financial Covenant Lenders.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Amendment) to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans, the initial Term Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders (it being understood and agreed that any such amendment (i) in connection with new Commitments or increases to the Commitments and/or Incremental Term Loans in accordance with Section 2.20, (ii) in connection with any extension in accordance with Section 2.23 or (iii) in connection with Permitted Refinancing Commitments or Permitted Refinancing Loans in accordance with Section 2.24 shall, in any such case, require solely the consent of the parties prescribed by such Sections and shall not require the consent of the Required Lenders).
(d) [Reserved].
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, (ii) the Borrower shall pay to such Non-Consenting Lender in Same Day Funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender and (iii) such Non-Consenting Lender shall have received the outstanding principal amount of its Loans. Each party hereto agrees that (a) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided that any such documents shall be without recourse to or warranty by the parties thereto.
(f) Notwithstanding anything to the contrary herein, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
(g) [Reserved];
(h) Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Appropriate Lenders directly affected thereby to amend the definition of “Alternative Currency”, “Alternative Currency Daily Rate” or “Alternative Currency Term Rate” or Section 1.06 solely to add additional currency options and the applicable interest rate with respect thereto, in each case solely to the extent permitted pursuant to Section 1.06.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (which shall be limited, in the case of legal fees and expenses, to the reasonable and documented fees, charges and disbursements and other charges of one firm of counsel and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case, for the Administrative Agent and its Affiliates), in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as IntraLinks™) of the credit facilities provided for herein, the preparation and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the L/C Issuers in connection with the issuance, amendment or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, any L/C Issuer or any Lender (which shall be limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and other charges of one firm of counsel for the Administrative Agent (and, to the extent reasonably required by the Administrative Agent, one firm of local counsel for the Administrative Agent in each applicable jurisdiction) and one counsel for all of the other Lenders and L/C Issuers (and, to the extent reasonably required by the Lenders, up to one firm of local counsel for all of the other Lenders and L/C Issuers in each applicable jurisdiction), unless a Lender or its counsel reasonably determines that it would create actual or potential conflicts of interests to not have individual counsel, in which case similarly affected Lenders may have one additional firm of counsel) in connection with the enforcement or protection of its rights in connection with this Agreement and any other Loan Document, including its rights under this Section, or in connection with the Loans made, including all such out-of-pocket expenses (subject to the foregoing limitations with respect to legal fees and expenses) incurred during any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent, each Bookrunner, each Arranger, the Syndication Agent, each Co-Documentation Agent, each L/C Issuer and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing (limited, in the case of legal expenses, to the reasonable and documented out-of-pocket fees, charges and disbursements of one firm of counsel as primary counsel and, to the extent reasonably required, a single firm of local counsel in each applicable jurisdiction for the Indemnitees, taken as a whole, and, in the event of an actual or reasonably perceived conflict of interest (as reasonably determined in good faith by the applicable Indemnitee), one additional firm of counsel to each group of similarly affected Indemnitees) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any Subsidiary, or any Environmental Liability related in any way to the Borrower or any Subsidiary, or (iv) any actual or prospective claim, litigation, investigation, arbitration or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by the Borrower or any other Loan Party or its or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (i) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (x) the willful misconduct, bad faith or gross negligence of such Indemnitee or any of its Related Indemnified Persons or (y) a material breach of such Indemnitee’s or any of its Related Indemnified Persons’ obligations under the applicable Loan Documents or (ii) have resulted from any dispute solely among Indemnitees (not arising as a result of any act or omission by any Loan Party or any Subsidiaries or Affiliates), other than any dispute involving claims against any Credit Party in its capacity as, or in fulfilling its role as, the Administrative Agent, an L/C Issuer, a Swingline Lender, an Arranger, a Bookrunner, agent or any similar role under or in connection with this Agreement. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. For purposes of this Section 9.03(b), a “Related Indemnified Person” of an Indemnitee means (1) any controlled Affiliate of such Indemnitee, (2) the respective directors, managers, officers and employees of such Indemnitee and of its controlled Affiliates and (3) the respective agents of such Indemnitee and its controlled Affiliates, in the case of this clause (3), acting at the express instructions of such Indemnitee or such controlled Affiliate; provided that each reference to a controlled affiliate, director, manager, officer or employee in this sentence pertains to a controlled affiliate, director, manager, officer or employee involved in the structuring, arrangement, negotiation or syndication of the credit facilities evidenced by this Agreement and/or the consummation of the transactions contemplated by the Loan Documents.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, any L/C Issuer or any Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, and each Revolving Lender severally agrees to pay to the applicable L/C Issuer or Swingline Lender, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being understood that the Borrower’s failure to pay any such amount shall not relieve the Borrower of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, such L/C Issuer or such Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable Law, and subject to the last sentence of this Section 9.03(d), no party hereto shall assert, and each party hereto hereby waives, any claim against any other party hereto for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), other than damages that are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such party. To the extent permitted by applicable Law, no Indemnitee shall assert against any Loan Party and no Loan Party shall assert against any Indemnitee, and each Indemnitee and Loan Party hereby waives, any claim against any other party hereto, 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 or thereby, the Transactions, any Loan, any Letter of Credit or the use of proceeds thereof. Notwithstanding the foregoing, nothing contained in this Section 9.03(d) shall limit the Borrower’s indemnity obligations to the extent set forth in Section 9.03(b).
(e) All amounts due under this Section shall be payable not later than thirty (30) days after written demand therefor accompanied by a reasonably detailed calculation of the amount demanded.
SECTION 9.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any L/C Issuer that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and the Administrative Agent (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any L/C Issuer that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution or any Disqualified Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, it being understood that in the case of any assignment that requires the Borrower’s consent, without limiting any other factors that may be reasonable, it shall be reasonable for the Borrower to consider a proposed assignee’s right to require reimbursement for increased costs when determining whether to consent to such an assignment) of:
(A) the Borrower (provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof); provided further that no consent of the Borrower shall be required (but notice to the Borrower, either prior to or promptly after such assignment, shall be required) (1) for an assignment of a Term A Loan, a Revolving Loan or the respective Commitments to a Term A Lender or an Affiliate thereof, Revolving Lender or an Affiliate thereof, or an Approved Fund, (2) for an assignment of a Term B Loan or the respective Commitments to a Lender, an Affiliate thereof or an Approved Fund[reserved] or (3) if a Specified Default has occurred and is continuing, for an assignment to any assignee;
(B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required (1) for an assignment of a Term A Loan, a Revolving Loan or the respective Commitments to a Term A Lender or an Affiliate thereof, Revolving Lender or an Affiliate thereof, or an Approved Fund or (2) for an assignment of a Term B Loan or the respective Commitments to a Lender, an Affiliate thereof or an Approved Fund[reserved];
(C) each L/C Issuer; provided that no consent of any L/C Issuer shall be required for an assignment of all or any portion of a Term Loan; and
(D) each Swingline Lender; provided that no consent of any Swingline Lender shall be required for an assignment of all or any portion of a Term Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 (in the case of Revolving Commitments and Revolving Loans) or $1,000,000 (in the case of a Term Loan) unless each of the Borrower and the Administrative Agent otherwise consent; provided that no such consent of the Borrower shall be required if a Specified Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, together with a processing and recordation fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable Laws, including federal and state securities laws.
For the purposes of this Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender Parent, (c) the Company, the Borrower (other than with respect to assignments expressly permitted under Section 9.04(f)), any Subsidiary or any of its Affiliates, or (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and interest amounts) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the L/C Issuers and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any L/C Issuer and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that, if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of, or notice to, the Borrower, the Administrative Agent, any L/C Issuer or any Swingline Lender, sell participations to one or more banks or other entities (a “Participant”), other than an Ineligible Institution or a Disqualified Institution, in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrower, the Administrative Agent, the L/C Issuers and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) (it being understood that the documentation required under Section 2.17(f) shall be delivered solely to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) shall be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.17, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, at the Borrower’s request and expense, use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participant shall be subject to Section 2.18(d) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and interest amounts) 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 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 or other obligation is in registered form under Treasury Regulations Section 5f.103-1(c) and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). 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.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Disqualified Institutions.
(i) No assignment or participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the applicable Lender entered into a binding agreement to sell and assign or grant a participation in all or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment or participation in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Institution for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee or Participant that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of “Disqualified Institution”), (x) such assignee or Participant shall not retroactively be disqualified from becoming a Lender or Participant with respect to the assignment or participation effectuated on such Trade Date and (y) the execution by the Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Institution. Any assignment or participation in violation of this clause (e)(i) shall not be void, but the other provisions of this clause (e) shall apply.
(ii) If any assignment or participation is made to any Disqualified Institution without the Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent, (A) terminate any Revolving Commitment of such Disqualified Institution and repay all obligations of the Borrower owing to such Disqualified Institution in connection with such Revolving Commitment, (B) in the case of outstanding Term Loans held by Disqualified Institutions, prepay such Term Loan by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents and/or (C) require such Disqualified Institution to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in this Section 9.04), all of its interest, rights and obligations under this Agreement and related Loan Documents to one or more Persons (other than an Ineligible Institution or other Disqualified Institution) that shall assume such obligations at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and other the other Loan Documents; provided that (I) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.04(b), (II) such assignment does not conflict with applicable Laws and (III) in the case of clause (B), the Borrower shall not use the proceeds from any Loans to prepay Term Loans held by Disqualified Institutions.
(iii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (x) have the right to receive information, reports or other materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders (or any of them) and the Administrative Agent or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) 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 Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Institutions consented to such matter and (y) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (“Plan of Reorganization”), each Disqualified Institution party hereto hereby agrees (1) not to vote on such Plan of Reorganization, (2) if such Disqualified Institution does vote on such Plan of Reorganization notwithstanding the restriction in the foregoing clause (1), 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 (3) not to contest any request by any party for a determination by a bankruptcy court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
(iv) The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent to, and the Administrative Agent promptly shall, (A) post the list of Disqualified Institutions provided by any Loan Party and any updates thereto from time to time (collectively, the “DQ List”) on the Approved Electronic Platform, including that portion of the Approved Electronic Platform that is designated for “public side” Lenders or (B) provide the DQ List to each Lender or potential Lender requesting the same.
(f) Dutch Auctions & Open Market Repurchases. Notwithstanding anything in this Agreement to the contrary, any Term B Lender may, at any time, without penalty or premium, assign all or a portion of its Term B Loans and/or Incremental Term B Loans and/or Permitted Refinancing Term Loans that are term B loans to the Borrower pursuant to an offer made available to all Term Lenders of the applicable Class on a pro rata basis (a “Dutch Auction”) or on a non-pro rata basis through open-market purchases, in each case subject to the following limitations:
(i) immediately and automatically, without any further action on the part of the Borrower, any Lender, the Administrative Agent or any other Person, upon the effectiveness of any such assignment of Term B Loans from a Term B Lender to the Borrower, such Term B Loans, and all rights and obligations as a Term B Lender related thereto shall, for all purposes under this Agreement, the other Loan Documents and otherwise, be deemed to be irrevocably prepaid, terminated, extinguished, cancelled and of no further force and effect and the Borrower shall neither obtain nor have any rights as a Term B Lender hereunder or under the other Loan Documents by virtue of such assignment;
(ii) no proceeds of any Revolving Loan or Swingline Loan shall be used for any such assignment;
(iii) no Event of Default shall have occurred and be continuing before or immediately after giving effect to such assignment; and
(iv) the Borrower shall, as of the date of the launch of the Dutch Auction, if applicable, and on the date of any such assignment (including pursuant to an open market purchase), either (A) represent (the “MNPI Representation”) to the Administrative Agent and the applicable Lenders that it does not have any material nonpublic information (“MNPI”) with respect to any Loan Party or any of their respective Subsidiaries that (1) has not been disclosed to the Lenders (other than Lenders that do not wish to receive MNPI with respect to the Borrower or any of its Subsidiaries) prior to such time and (2) in such Person’s good faith determination could reasonably be expected to have a material effect upon (x) a Lender’s decision to assign all or a portion of its applicable Term Loans to the Borrower or (y) the market price of the applicable Term Loans or (B) disclose to the applicable Lenders that it is not making such MNPI Representation.
SECTION 9.05. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any L/C Issuer or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect in accordance with their terms as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.
SECTION 9.06. Electronic Execution; Electronic Records; Counterparts; Effectiveness. This Agreement, any Loan Document and any other Ancillary Document, including Ancillary Documents required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Loan Parties and each of the Administrative Agent and each Lender Party agrees that any Electronic Signature on or associated with any Ancillary Document shall be valid and binding on such Person to the same extent as a manual, original signature, and that any Ancillary Document entered into by Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Ancillary Document may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Ancillary Document. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper Ancillary Document which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Ancillary Document converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Lender Parties may, at its option, create one or more copies of any Ancillary Document in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Ancillary Document in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, neither the Administrative Agent, L/C Issuer nor Swingline Lender is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided further that, without limiting the foregoing, (a) to the extent the Administrative Agent, L/C Issuer and/or Swingline Lender has agreed to accept such Electronic Signature, the Administrative Agent and each of the Lender Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Lender Party without further verification and (b) upon the request of the Administrative Agent or any Lender Party, any Electronic Signature shall be promptly followed by such manually executed counterpart.
Neither the Administrative Agent, L/C Issuer nor Swingline Lender shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s, L/C Issuer’s or Swingline Lender’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). The Administrative Agent, L/C Issuer and Swingline Lender shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Ancillary Document (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution or signed using an Electronic Signature) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
Each of the Loan Parties and each Lender Party hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document based solely on the lack of paper original copies of this Agreement, such other Loan Document, and (ii) waives any claim against the Administrative Agent, each Lender Party and each Related Party for any liabilities arising solely from the Administrative Agent’s and/or any Lender Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to setoff and apply any and all deposits (general or special, time or demand, provisional or final, but excluding deposits held in a trustee, fiduciary, agency or similar capacity or otherwise for the benefit of a third party) at any time held, and other obligations at any time owing, by such Lender, such L/C Issuer or any such Affiliate, to or for the credit or the account of the Borrower against any and all of the Obligations held by such Lender or L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender or L/C Issuer different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided that, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so setoff shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.22 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, the L/C Issuers and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, L/C Issuer or their respective Affiliates may have. Each Lender and L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, EXCLUDING CONFLICT OF LAW PRINCIPLES PROVIDING FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
(b) Each of the Lenders and the Administrative Agent hereby irrevocably and unconditionally agrees that, notwithstanding the governing law provisions of any applicable Loan Document, any claims brought against the Administrative Agent by any Secured Party relating to this Agreement, any other Loan Document, the Collateral or the consummation or administration of the transactions contemplated hereby or thereby shall be construed in accordance with and governed by the law of the State of New York.
(c) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may (and any such claims, cross-claims or third party claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such Federal (to the extent permitted by law) or New York State court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that the Administrative Agent, any L/C Issuer or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
(d) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (c) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(e) Each of the parties hereto hereby irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by applicable Law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the L/C Issuers and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors on a need-to-know basis (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential to the same extent as if they were parties hereto and the disclosing Administrative Agent, L/C Issuer or Lender shall be responsible for any violation of the provisions of this Section 9.12 by any such Person), (b) to the extent requested by any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process (provided that the applicable disclosing Person shall, to the extent practicable and not prohibited by applicable Law, rule or regulation, (x) notify the Borrower in writing in advance of such required disclosure and (y) in the case of such a disclosure pursuant to legal process, to cooperate with the Borrower (at the Borrower’s expense) in obtaining an appropriate protective order), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as (or no less restrictive than) those of this Section, to (1) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (2) any actual or prospective direct or indirect counterparty (or its advisors) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) to the extent required by a potential or actual insurer or reinsurer in connection with providing insurance, reinsurance or credit risk mitigation coverage under which payments are to be made or may be made by reference to this Agreement, (h) on a confidential basis to (1) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of identification numbers with respect to the credit facilities provided for herein, (i) with the prior written consent of the Borrower or (j) to the extent such Information (1) becomes publicly available other than as a result of a breach of this Section or (2) becomes available to the Administrative Agent, any L/C Issuer or any Lender on a nonconfidential basis from a source other than the Borrower or any of its Subsidiaries that the Administrative Agent, such L/C Issuer or such Lender, as applicable, reasonably believes is not prohibited from disclosing such information to such party in violation of a duty or contractual obligation of confidentiality to the Borrower or any of its Subsidiaries. For the purposes of this Section, “Information” means all information received from or on behalf of the Borrower and/or any Subsidiary relating to the Borrower, its Subsidiaries or Affiliates or their respective businesses, other than, after the Borrower has publicly filed this Agreement with the SEC, information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information but in no event less than a reasonable degree of care.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THE IMMEDIATELY PRECEDING PARAGRAPH FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY OR ON BEHALF OF THE BORROWER, ANY SUBSIDIARIES OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of the Patriot Act and the requirements of the Beneficial Ownership Regulation hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies such Loan Party, which information includes the name, address and tax identification number of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act and the Beneficial Ownership Regulation and other applicable “know your customer” and anti-money laundering rules and regulations.
SECTION 9.14. Releases of Subsidiary Guarantors and Collateral.
(a) A Subsidiary Guarantor shall automatically be released from its obligations under the Loan Documents (i) pursuant to the terms of Section 9.20 and (ii) upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a Subsidiary; provided that, in the case of clause (ii) above, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. In connection with any termination or release pursuant to this Section (including pursuant to clause (b) below), the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) promptly execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent except as may otherwise be expressly agreed in writing by the Administrative Agent and such Loan Party.
(b) Further, the Administrative Agent may (and is hereby irrevocably authorized by each Lender to), upon the request of the Borrower, release any Subsidiary Guarantor from its obligations under the Guaranty if such Subsidiary Guarantor is no longer a Restricted Subsidiary or becomes an Excluded Subsidiary or is otherwise not required pursuant to the terms of this Agreement to provide the Guaranty, provided that an existing Subsidiary Guarantor shall not be released from its Guaranty and shall not be considered an Excluded Subsidiary solely as a result of such Subsidiary Guarantor becoming a non-Wholly-Owned Subsidiary if as a result of (A) a Disposition or issuance of Equity Interests of such Subsidiary Guarantor, in either case, to a person that is an Affiliate of the Borrower or (B) any transaction entered into primarily for the purpose of such Subsidiary Guarantor ceasing to constitute a Subsidiary Guarantor.
(c) Upon (i) any Disposition by any Loan Party (other than to any Loan Party) of any Collateral in a transaction permitted under this Agreement (including, without limitation, by virtue of any merger or consolidation permitted under this Agreement) or (ii) any release of the Lien created under any Collateral Document in any Collateral pursuant to Sections 8.08, 9.14 or 9.20 or as otherwise provided in any Collateral Document, the Liens in such Collateral created by the Collateral Documents shall be automatically and immediately released. In connection with any such termination or release pursuant to this Section, the Administrative Agent shall (and is hereby irrevocably authorized by each Secured Party to) promptly execute and deliver to the applicable Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Borrower or any Restricted Subsidiary in respect of) all interests retained by the Borrower or any Restricted Subsidiary, including (without limitation) the proceeds of such sale or disposition, all of which shall continue to constitute part of the Collateral. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
SECTION 9.15. Appointment for Perfection. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable Law can be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or control of any such Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly thereafter shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.
SECTION 9.16. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable Law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Overnight Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.17. No Fiduciary Duty, etc.
(a) The Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that no Credit Party will have any obligations except those obligations expressly set forth herein and in the other Loan Documents and each Credit Party is acting solely in the capacity of an arm’s length contractual counterparty to the Loan Parties with respect to the Loan Documents and the transactions contemplated herein and therein and not as a financial advisor or a fiduciary to, or an agent of, any Loan Party or any other person. The Borrower agrees that it will not assert any claim against any Credit Party based on an alleged breach of fiduciary duty by such Credit Party in connection with this Agreement and the transactions contemplated hereby. Additionally, the Borrower acknowledges and agrees that no Credit Party is advising the Loan Parties as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction in connection with this Agreement, the other Loan Documents and the credit facilities evidenced hereby. The Borrower shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated herein or in the other Loan Documents, and the Credit Parties shall have no responsibility or liability to the Loan Parties with respect thereto.
(b) Each of the Borrower further acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that each Credit Party, together with its Affiliates, is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, any Credit Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, the Borrower, its Subsidiaries and other companies with which the Borrower or any Subsidiary may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Credit Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.
(c) In addition, the Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that each Credit Party and its Affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which the Borrower or any Subsidiary may have conflicting interests regarding the transactions described herein and otherwise. No Credit Party will use Information obtained from or on behalf of the Loan Parties by virtue of the transactions contemplated by the Loan Documents or its other relationships with the Loan Parties in connection with the performance by such Credit Party of services for other companies, and no Credit Party will furnish any such Information to other companies. The Borrower also acknowledges that no Credit Party has any obligation to use in connection with the transactions contemplated by the Loan Documents, or to furnish to the Borrower or any Subsidiary, confidential information obtained from other companies.
SECTION 9.18. 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 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 entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
To the extent not prohibited by applicable Law, each Lender shall notify the Borrower and the Administrative Agent if it has become the subject of a Bail-In Action (or any case or other proceeding in which a Bail-In Action may occur).
SECTION 9.19. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
SECTION 9.20. Investment Grade Fallaway Provision. Notwithstanding anything to the contrary set forth herein, upon evidence being provided by the Borrower to the Administrative Agent confirming that (a) the Borrower has obtained, after the Closing Date, a corporate rating with a stable outlook from at least two of S&P, Moody’s and Fitch of BBB-, Baa3 or BBB-, as applicable and (b) all Pari Passu Debt has been repaid in full and all outstanding commitments thereunder have been terminated (any period when the requirements set forth in clauses (a) and (b) above are satisfied, an “Investment Grade Period”), the Borrower may elect, in its sole discretion, by delivery of a written notice to the Administrative Agent of a Responsible Officer of the Borrower that certifies to the satisfaction or concurrent satisfaction of the foregoing and includes the election, to have the Guarantee of the Subsidiary Guarantors contained in Article X and the security interests in the Collateral released, and such release will occur immediately following the delivery of such notice to the Administrative Agent; following such release each reference to the Guarantee of the Subsidiary Guarantors contained in Article X shall, so long as no Default is in existence and continuing at such time, be deemed to be of no further force and effect; provided that, if the Borrower shall at any time after the initial achievement of such investment grade rating fail to maintain such corporate rating with a stable outlook from at least two of S&P, Moody’s and Fitch, all Guarantees and all security interests in the Collateral released pursuant to this Section 9.20 as described above shall be automatically reinstated on the same terms and within 60 days (or such longer period as the Administrative Agent may agree in its reasonable discretion) and (i) each Wholly-Owned Domestic Subsidiary (other than any Excluded Subsidiary) shall execute and deliver to the Administrative Agent a Guaranty Supplement and (ii) the Borrower and each Wholly-Owned Domestic Subsidiary (other than any Excluded Subsidiary) shall execute and deliver to the Administrative Agent the Security Agreement (or a joinder thereto) and each other Collateral Document reasonably requested by the Administrative Agent, in each case on substantially the same terms as the Guaranty or Guaranty Supplement and Collateral Documents, as applicable, previously delivered by such Restricted Subsidiary, and together with any certificates, filings, corporate authorizations, legal opinions and other documentation reasonably required by the Administrative Agent and the Borrower and each Wholly-Owned Domestic Subsidiary (other than any Excluded Subsidiary) shall take all steps necessary to create and perfect the Liens of the Administrative Agent in the Collateral, in form and substance reasonably satisfactory to the Administrative Agent (the date any such guarantees and collateral documentation become effective, a “Reversion Date”). The Administrative Agent is hereby authorized to enter into any Collateral Documents in connection with any Reversion Date. No Default or Event of Default shall be deemed to have occurred on the Reversion Date as a result of any actions taken by the Borrower or any of its Restricted Subsidiaries during the Investment Grade Period, or any actions taken at any time pursuant to any contractual obligations arising during the Investment Grade Period (provided that such contractual obligations were not entered into in contemplation of, or with awareness of, the cessation or expected cessation of an Investment Grade Period), in each case that were permitted under the Loan Documents as in effect at the time such actions were taken or such contractual obligations arose, regardless of whether such actions would have been permitted in the absence of the related Investment Grade Period. It is hereby understood and agreed that this Section 9.20 shall not, in any event, effect the release of the Guaranty of the Borrower contained in Article X, which shall remain in effect during the entire term of this Agreement.
ARTICLE X
Guaranty
SECTION 10.01. Guaranty, Limitation of Liability.
(a) Each Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or by acceleration, demand or otherwise, of all Secured Obligations now or hereafter existing (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Secured Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Secured Obligations being the “Guaranteed Obligations”). Each Guarantor agrees to pay any and all expenses (including, without limitation, and subject to the limitations in Section 9.03, reasonable, documented and out-of-pocket fees and expenses of counsel) incurred by the Administrative Agent or any Lender Party in enforcing any rights against such Guarantor under this Agreement or any other Loan Document. Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations, in each case that would be owed by the Borrower and the other Loan Parties, respectively, to any Lender Party but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower or other Loan Party.
(b) Each Guarantor and each Lender Party hereby confirms that it is the intention of all such Persons that the Secured Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of any Debtor Relief Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law or other applicable Law to the extent applicable to the Guaranty and the Secured Obligations of such Guarantor hereunder. To effectuate the foregoing intention, each Lender Party and each Guarantor hereby irrevocably agree that the Secured Obligations of each Guarantor with respect to the Guaranty at any time shall be limited to the maximum amount as will result in the Secured Obligations of such Guarantor under the Guaranty not constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Lender Party with respect to the Guaranty, such Guarantor will contribute, to the maximum extent permitted by applicable Law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Lender Parties under or in respect of the Loan Documents.
(d) The Guaranty contained herein is a guarantee of payment and not of collection.
SECTION 10.02. Guaranty Absolute.
To the fullest extent permitted pursuant to applicable Law, each Guarantor guarantees that the Guaranteed Obligations guaranteed by it will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Lender Party with respect thereto. The Secured Obligations of each Guarantor under or in respect of the Guaranty are independent of the Guaranteed Obligations or any other Secured Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce the Guaranty, irrespective of whether any action is brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions. The liability of each Guarantor under the Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other Secured Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate structure or existence of any Loan Party or any of its Subsidiaries;
(e) the failure of any other Person to execute or deliver any Guaranty Supplement or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or
(f) to the fullest extent permitted by applicable Law, any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Lender Party that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.
The Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party or otherwise, all as though such payment had not been made.
SECTION 10.03. Waivers and Acknowledgments.
(a) Except as otherwise expressly provided in this Agreement and/or the other Loan Documents, each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and the Guaranty and any requirement that the Administrative Agent, any L/C Issuer or any Lender exhaust any right or take any action against any Loan Party or any other Person.
(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke its Secured Obligations with respect to the Guaranty and acknowledges that such Secured Obligations are continuing in nature and apply to all Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Administrative Agent, any L/C Issuer or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Secured Obligations of such Guarantor hereunder.
(d) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent, any L/C Issuer or any Lender to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party or any of its Subsidiaries now or hereafter known by the Administrative Agent, any L/C Issuer or any Lender.
(e) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in Section 10.02 and this Section 10.03 are knowingly made in contemplation of such benefits.
SECTION 10.04. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, any other Loan Party or any other insider guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s Secured Obligations under or in respect of the Guaranty or any Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any of the Administrative Agent, the L/C Issuers or the Lenders against the Borrower, any other Loan Party or any other insider guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower, any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under the Guaranty shall have been paid in full in cash and the Commitments shall have expired or been terminated; provided that each Guarantor may make any necessary filings solely to preserve its claims against the Borrower, other Loan Party or other insider guarantor. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under the Guaranty and (b) the date on which the Commitments shall have been terminated in whole, such amount shall be received and held in trust for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under the Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents. If (i) any Guarantor shall make payment to any of the Administrative Agent, the L/C Issuers or the Lenders of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under the Guaranty shall have been paid in full in cash and (iii) the Commitments shall have been terminated in whole, the Administrative Agent, the L/C Issuers and the Lenders will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to the Guaranty.
SECTION 10.05. Guaranty Supplements.
(a) The Borrower may at any time have additional Restricted Subsidiaries joined as Guarantors by execution and delivery of a Guaranty Supplement, together with such customary certificates, evidences of authority and opinions of counsel as the Administrative Agent may reasonably request in connection therewith.
(b) Upon the execution and delivery by any Person of a Guaranty Supplement, (a) such Person shall be referred to as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in this Agreement or any other Loan Document to a “Guarantor,” shall also mean and be a reference to such Additional Guarantor and (b) each reference herein to “the Guaranty,” “hereunder,” “hereof” or words of like import referring to the Guaranty under this Article X, and each reference in any Loan Document to the “Guaranty,” “thereunder,” “thereof” or words of like import referring to the Guaranty, shall mean and be a reference to the Guaranty as supplemented by such Guaranty Supplement.
SECTION 10.06. Subordination. Each Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to such Guarantor by each other Loan Party arising from the Guaranty (the “Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 10.06:
(a) Prohibited Payments, Etc. Except during the continuance of an Event of Default, each Guarantor may receive regularly scheduled payments from any other Loan Party on account of the Subordinated Obligations. After the occurrence and during the continuance of any Event of Default, however, unless the Required Lenders otherwise agree, no Guarantor shall demand, accept or take any action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. Each Guarantor agrees that in any proceeding under any Debtor Relief Laws relating to any other Loan Party, the Administrative Agent, the L/C Issuers and the Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Debtor Relief Laws, whether or not constituting an allowed claim in such proceeding (“Post-Petition Interest”)) before such Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any Event of Default, each Guarantor shall, if the Administrative Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Lenders and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Guarantor under the other provisions of the Guaranty.
(d) Administrative Agent Authorization. After the occurrence and during the continuance of any Event of Default, the Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of each Guarantor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post-Petition Interest), and (ii) to require each Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Administrative Agent for application to the Guaranteed Obligations (including any and all Post--Petition Interest).
SECTION 10.07. Continuing Guaranty; Assignments. Subject to Sections 8.08, 9.14 and 9.20, the Guaranty under this Article X is a continuing guaranty and shall remain in full force and effect until satisfaction of the Termination Date Conditions.
SECTION 10.08. Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under the Guaranty in respect of a Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.08 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.08 or otherwise under the Guaranty under this Article X voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). Except as otherwise provided herein (including Section 10.07), the obligations of each Qualified ECP Guarantor under this Section 10.08 shall remain in full force and effect until the termination of all Swap Obligations. Each Qualified ECP Guarantor intends that this Section 10.08 constitute, and this Section 10.08 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
[Reminder of page intentionally left blankSignature Pages Intentionally Omitted]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| PHINIA INC., as the Borrower
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| | [_________], as a Guarantor |
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Signature Page to Credit Agreement
BANK OF AMERICA, N.A.,
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as Administrative Agent
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Signature Page to Credit Agreement
BANK OF AMERICA, N.A.,
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as a Lender, a L/C Issuer and a Swingline Lender
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Signature Page to Credit Agreement
[__], as a Lender [and a L/C Issuer]
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Signature Page to Credit Agreement
SCHEDULE 2.01
COMMITMENTS
Revolving Commitments and Term Loan Commitments
Lender | Revolving Commitment | Term A Loan Commitment | Term B Loan
Commitment
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Bank of America, N.A. | $77,187,500.00 | $42,812,500.00 | --
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JPMorgan Chase Bank, N.A. | $77,187,500.00 | $42,812,500.00 | $425,000,000.00
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PNC Bank, National Association | $75,000,000.00 | $45,000,000.00 | --
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Wells Fargo Bank, National Association | $75,000,000.00 | $45,000,000.00 | --
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U.S. Bank National Association | $75,000,000.00 | $45,000,000.00 | --
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Deutsche Bank AG New York Branch | $43,750,000.00 | $26,250,000.00 | --
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Bank of China, New York Branch | $31,250,000.00 | $18,750,000.00 | --
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Citibank, N.A. | $28,125,000.00 | $16,875,000.00 | --
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The Northern Trust Company | $17,500,000.00 | $17,500,000.00 | --
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| TOTAL | $500,000,000.00 | $300,000,000.00 | $425,000,000.00
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L/C Commitments
L/C Issuer | L/C Commitment |
Bank of America, N.A. | $ 8,333,333.34 |
JPMorgan Chase Bank, N.A. | $ 8,333,333.33 |
PNC Bank, National Association | $ 8,333,333.33 |
Wells Fargo Bank, National Association | $ 8,333,333.33 |
U.S. Bank National Association | $ 8,333,333.33 |
Deutsche Bank AG New York Branch | $ 8,333,333.33 |
| TOTAL | $50,000,000.00 |
