EXECUTION VERSION [[3680588]] AMENDMENT AND RESTATEMENT AGREEMENT dated as of November 15, 2017 (this “Amendment”), among VECTRUS, INC., an Indiana corporation (“Holdings”), VECTRUS SYSTEMS CORPORATION, a Delaware corporation (the “Borrower”), the...
EXECUTION VERSION
[[3680588]]
AMENDMENT AND RESTATEMENT AGREEMENT
dated as of November 15, 2017 (this “Amendment”), among
VECTRUS, INC., an Indiana corporation (“Holdings”),
VECTRUS SYSTEMS CORPORATION, a Delaware corporation
(the “Borrower”), the other LOAN PARTIES party hereto, the
LENDERS and ISSUING BANKS party hereto and JPMORGAN
CHASE BANK, N.A. (“JPMorgan”), as administrative agent (in
such capacity, the “Administrative Agent”) under the Credit
Agreement dated as of September 17, 2014 (as amended,
supplemented or otherwise modified from time to time, the
“Existing Credit Agreement”), among Holdings, the Borrower, the
lenders and issuing banks party thereto and the Administrative
Agent. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Restated Credit
Agreement (as defined below), except as otherwise expressly set
forth herein.
WHEREAS, the Borrower has requested, and the undersigned Lenders,
Issuing Banks and the Administrative Agent have agreed, upon the terms and subject to
the conditions set forth herein and in the Restated Credit Agreement, that (a) the Existing
Credit Agreement will be amended and restated as provided herein, (b) in connection
therewith, (i) the Revolving Commitments under the Existing Credit Agreement shall be
increased to $120,000,000 (as further described below), (ii) the maturity date of the
Revolving Commitments shall be extended to the date that is five years after the
Restatement Effective Date (as defined below) and (iii) the Tranche A Term Loans (as
defined in the Existing Credit Agreement) shall be refinanced with a new tranche of
Tranche A term loans in an aggregate principal amount equal to $80,000,000 having a
maturity date that is five years after the Restatement Effective Date (as further described
below) and (c) the Loan Parties will reaffirm their respective obligations under the
Security Agreements;
WHEREAS, (a) each Lender holding Revolving Commitments and/or
Revolving Loans immediately prior to the consummation of the transactions specified in
Section 3 hereof (each, an “Existing Revolving Lender”) that executes and delivers a
signature page to this Amendment (each, a “Consenting Revolving Lender”) at or prior to
5:00 p.m., New York City time, on Monday, November 13, 2017 (the “Delivery Time”),
will have agreed to the terms of this Agreement upon the effectiveness of this Agreement
on the Restatement Effective Date, and (b) each Existing Revolving Lender that does not
execute and deliver a signature page to this Agreement at or prior to the Delivery Time
(each, a “Declining Revolving Lender”) will be deemed not to have agreed to this
Agreement and will be subject to the mandatory assignment provisions of Sections
9.02(c) of the Existing Credit Agreement upon the effectiveness of this Agreement on the
Restatement Effective Date (it being understood that the interests, rights and obligations
of the Declining Revolving Lenders under the Loan Documents will be assumed by
(a) certain Consenting Revolving Lenders and (b) certain financial institutions that are
not Existing Revolving Lenders and that are party hereto (each, a “New Revolving
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Lender”), in each case in accordance with Sections 9.02(c) and 9.04(b) of the Existing
Credit Agreement and Section 3 hereof);
WHEREAS, the Borrower hereby requests that the Revolving
Commitment Increase Lenders (as defined below) (a) provide additional Revolving
Commitments on the Restatement Effective Date in an aggregate amount of $25,000,000
(the “Revolving Commitment Increase”) and (b) make Revolving Loans to the Borrower
in respect thereof from time to time during the Revolving Availability Period subject to
the terms and conditions set forth herein and in the Restated Credit Agreement;
WHEREAS, each Person party hereto whose name is set forth on
Schedule I hereto under the heading “Revolving Commitment Increase Lenders” (each
such Person, a “Revolving Commitment Increase Lender”) has agreed (a) to provide a
portion of the Revolving Commitment Increase to the Borrower in the amount set forth
opposite its name on such Schedule and (b) to make Revolving Loans to the Borrower in
respect thereof from time to time during the Revolving Availability Period subject to the
terms and conditions set forth herein and in the Restated Credit Agreement;
WHEREAS, the Borrower hereby requests that the New Term Loan
Lenders (as defined below) (a) provide new Tranche A term commitments on the
Restatement Effective Date in an aggregate amount of $80,000,000 (the “New Tranche A
Term Commitments”) and (b) make new Tranche A term loans (the “New Tranche A
Term Loans”) to the Borrower in respect thereof on the Restatement Effective Date, the
proceeds of which shall be used to prepay the Tranche A Term Loans (as defined in the
Existing Credit Agreement) and accrued but unpaid interest thereon, to pay fees in
respect of this Agreement and, to the extent of any remaining proceeds from the New
Tranche A Term Loans, for working capital and other general corporate purposes; and
WHEREAS, each Person party hereto whose name is set forth on
Schedule II hereto under the heading “New Tranche A Term Lender” (each such Person,
a “New Tranche A Term Lender”) has agreed (a) to provide a portion of the New
Tranche A Term Commitments to the Borrower in the amount set forth opposite its name
on such Schedule and (b) to make New Tranche A Term Loans to the Borrower in respect
thereof on the Restatement Effective Date subject to the terms and conditions set forth
herein and in the Restated Credit Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto
hereby agree as follows:
SECTION 1. Rules of Interpretation. The rules of interpretation set forth
in Section 1.03 of the Restated Credit Agreement are hereby incorporated by reference
herein, mutatis mutandis.
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SECTION 2. Restatement Effective Date. The “Restatement Effective
Date” shall be the date as of which all the conditions set forth or referred to in Section 6
hereof shall have been satisfied.
SECTION 3. Concerning the Revolving Lenders, the Revolving
Commitments and the Revolving Loans under the Existing Credit Agreement.
(a) Subject to the terms and conditions set forth herein, on the
Restatement Effective Date but prior to giving effect to the transactions
contemplated by Section 4 hereof, (i) each New Revolving Lender shall become,
and each Consenting Revolving Lender shall continue to be, a “Revolving
Lender” and a “Lender” under the Existing Credit Agreement and (ii) each New
Revolving Lender shall have, and each Consenting Revolving Lender shall
continue to have, all the rights and obligations of a “Revolving Lender” and a
“Lender” holding a Revolving Commitment or a Revolving Loan under the
Existing Credit Agreement and the other Loan Documents.
(b) Pursuant to Sections 9.02(c) and 9.04(b) of the Existing Credit
Agreement, on the Restatement Effective Date but prior to giving effect to the
transactions contemplated by Section 4 hereof, (i) each Declining Revolving
Lender shall be deemed to have assigned, delegated and transferred its Revolving
Commitments and its Revolving Loans, as applicable, including any
participations in LC Disbursements, and (ii) each Consenting Revolving Lender
that will be allocated an aggregate amount of the Revolving Commitments as of
the Restatement Effective Date that is less than the aggregate amount of
Revolving Commitments of such Consenting Revolving Lender immediately prior
to the Restatement Effective Date (as disclosed to such Consenting Revolving
Lender by the Administrative Agent prior to the date hereof) shall be deemed to
have assigned, delegated and transferred the portion of its Revolving
Commitments in excess of such allocated amount (together with a proportionate
principal amount of the Revolving Loans and participations in LC Disbursements
of such Consenting Revolving Lender), in each case together with all its interests,
rights (other than its existing rights to payments pursuant to Section 9.02(c) of the
Existing Credit Agreement) and obligations under the Loan Documents in respect
thereof, to JPMorgan, as assignee, and, in the case of its Revolving Loans and
participations in LC Disbursements, at a purchase price equal to par (the
“Revolving Loan Purchase Price”). Upon (A) payment to a Declining Revolving
Lender of (x) the Revolving Loan Purchase Price with respect to its Revolving
Loans and participations in LC Disbursements so assigned, delegated and
transferred pursuant to this paragraph (b) (which shall be paid by JPMorgan) and
(y) accrued and unpaid interest and fees and other amounts owing under the
Existing Credit Agreement, in each case with respect to the Revolving
Commitments and Revolving Loans through but excluding the Restatement
Effective Date (which shall be paid by the Borrower), and (B) the satisfaction of
the applicable conditions set forth in Sections 9.02(c) and 9.04(b) of the Existing
Credit Agreement (but without the requirement of any further action on the part of
such Declining Revolving Lender, the Borrower or the Administrative Agent),
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such Declining Revolving Lender shall cease to be a party to the Existing Credit
Agreement in its capacity as a Revolving Lender and a Lender.
(c) Subject to the terms and conditions set forth herein, on the
Restatement Effective Date but prior to giving effect to the transactions
contemplated by Section 4 hereof, (i) to the extent any Consenting Revolving
Lender will be allocated an aggregate amount of the Revolving Commitments as
of the Restatement Effective Date that is more than the aggregate amount of the
Revolving Commitments of such Consenting Revolving Lender immediately prior
to the Restatement Effective Date (as disclosed to such Consenting Revolving
Lender by the Administrative Agent prior to the date hereof), each such
Consenting Revolving Lender agrees to assume from JPMorgan the portion of
such excess amount (together with a proportionate principal amount of the
Revolving Loans and participations in LC Disbursements (in the case of the
Revolving Loans and participations in LC Disbursements, at a purchase price
equal to par)) such that, immediately after such assignment and assumption, such
Consenting Revolving Lender holds Revolving Commitments in an amount equal
to the amount set forth opposite such Consenting Revolving Lender’s name on
Schedule I hereto and (ii) each New Revolving Lender, if any, set forth on
Schedule I hereto agrees to assume from JPMorgan Revolving Commitments in
an aggregate amount equal to the amount set forth opposite such New Revolving
Lender’s name on Schedule I hereto (together with a proportionate principal
amount of the Revolving Loans and participations in LC Disbursements (in the
case of the Revolving Loans and participations in LC Disbursements, at a
purchase price equal to par)).
(d) Each New Revolving Lender, if any, by delivering its signature page
to this Agreement on the Restatement Effective Date and assuming Revolving
Commitments and Revolving Loans in accordance with Section 3(c) hereof, shall
be deemed to have acknowledged receipt of, and consented to and approved, each
Loan Document and each other document required to be approved by the
Administrative Agent or any Lenders, as applicable, on the Restatement Effective
Date (including, without limitation, the amendment and restatement of the
Existing Credit Agreement contemplated hereby).
(e) The transactions described in this Section 3 will be deemed to satisfy
the requirements of Sections 9.02(c) and 9.04 of the Existing Credit Agreement in
respect of the assignment of the Revolving Commitments, Revolving Loans and
participations in LC Disbursements so assigned, delegated and transferred
pursuant to Section 3(b) hereof, and this Agreement will be deemed to be an
Assignment and Assumption with respect to such assignments.
SECTION 4. Amendment and Restatement of the Existing Credit
Agreement; Revolving Commitment Increase.
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(a) Effective as of the Restatement Effective Date, the Existing Credit
Agreement is hereby amended and restated to read in its entirety as set forth in Exhibit A
hereto (the “Restated Credit Agreement”).
(b) The aggregate amount of all Letters of Credit outstanding under the
Existing Credit Agreement on the Restatement Effective Date shall continue to be
outstanding under the Restated Credit Agreement and, from and after such date, the terms
of the Restated Credit Agreement will govern the rights of the Administrative Agent, the
Lenders and the Issuing Banks with respect thereto.
(c) Effective as of the Restatement Effective Date, but immediately after
giving effect to the transactions described in paragraph (a) of this Section 4, the
Revolving Commitment Increase shall become effective. Schedule I hereto sets forth the
portion of the Revolving Commitment Increase of each Revolving Commitment Increase
Lender as of the Restatement Effective Date (with respect to each Revolving
Commitment Increase Lender, such Revolving Commitment Increase Lender’s “Increase
Commitment”), and immediately after giving effect to this Agreement, the amount of
Revolving Commitments of each Revolving Commitment Increase Lender shall include
such Revolving Commitment Increase Lender’s Increase Commitment. Effective as of
the Restatement Effective Date, each Revolving Commitment Increase Lender shall be a
“Revolving Lender” and a “Lender” under the Restated Credit Agreement and the other
Loan Documents, and each Revolving Commitment Increase Lender shall have all the
rights and obligations of a “Revolving Lender” and a “Lender” holding a Revolving
Commitment or a Revolving Loan under the Restated Credit Agreement and the other
Loan Documents. Each Revolving Commitment Increase Lender’s Increase
Commitment shall be several and not joint.
(d) On the Restatement Effective Date, but immediately after giving
effect to the transactions described in paragraph (c) of this Section 4, (i) the aggregate
principal amount of Revolving Borrowings outstanding immediately prior to the
effectiveness of the Revolving Commitment Increase (the “Existing Revolving
Borrowings”) shall be deemed to be repaid, (ii) each Revolving Commitment Increase
Lender that shall have had a Revolving Commitment immediately prior to the
effectiveness of the Revolving Commitment Increase shall pay to the Administrative
Agent in same day funds an amount equal to the amount, if any, by which (A) (1) such
Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving
effect to the Revolving Commitment Increase) multiplied by (2) the aggregate principal
amount of the Resulting Revolving Borrowings (as defined below) exceeds (B) (1) such
Revolving Commitment Increase Lender’s Applicable Percentage (calculated without
giving effect to the Revolving Commitment Increase) multiplied by (2) the aggregate
principal amount of Existing Revolving Borrowings, (iii) each Revolving Commitment
Increase Lender that shall not have had a Revolving Commitment immediately prior to
the effectiveness of the Revolving Commitment Increase shall pay to the Administrative
Agent in same day funds an amount equal to (A) such Revolving Commitment Increase
Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of the
Revolving Commitment Increase) multiplied by (B) the aggregate principal amount of
the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the
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funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each
Revolving Lender (other than, for the avoidance of doubt, the Revolving Commitment
Increase Lender from whom such funds were received) the portion of such funds that is
equal to the amount, if any, by which (A) (1) such Revolving Lender’s Applicable
Percentage (calculated without giving effect to the effectiveness of the Revolving
Commitment Increase) multiplied by (2) the aggregate principal amount of the Existing
Revolving Borrowings exceeds (B) (1) such Revolving Lender’s Applicable Percentage
(calculated after giving effect to the effectiveness of the Revolving Commitment
Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving
Borrowings, (v) after the effectiveness of the Revolving Commitment Increase, the
Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting
Revolving Borrowings”) in an aggregate principal amount equal to the aggregate
principal amount of the Existing Revolving Borrowings and of the Types and for the
Interest Periods specified in the notice of borrowing delivered pursuant to Section 6(g)
hereof, (vi) each Revolving Lender (including, for the avoidance of doubt, each
Revolving Commitment Increase Lender) shall be deemed to hold its Applicable
Percentage of the Resulting Revolving Borrowings (calculated after giving effect to the
effectiveness of the Revolving Commitment Increase) and (vii) the Borrower shall pay to
each Revolving Lender (prior to the effectiveness of the Increase) any and all accrued but
unpaid interest on its Loans comprising the Existing Revolving Borrowings, together
with any amounts payable pursuant to Section 2.16 of the Restated Credit Agreement in
respect of the repayment contemplated by clause (i) of this paragraph (b), in each case as
required by and pursuant to the terms of the Restated Credit Agreement. Upon the
effectiveness of the Revolving Commitment Increase, each Revolving Lender
immediately prior to the Revolving Commitment Increase will automatically and without
further action be deemed to have assigned to each Revolving Commitment Increase
Lender, and each such Revolving Commitment Increase 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 such that, after giving effect to
the Revolving Commitment Increase and each such deemed assignment and assumption
of participations, the percentage of the aggregate outstanding participations hereunder in
Letters of Credit, in each case held by each Revolving Lender (including each such
Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable
Percentage.
(e) Each Revolving Commitment Increase Lender, by delivering its
signature page to this Agreement on the Restatement Effective Date, 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 any Lenders, as applicable on the Restatement Effective Date.
(f) Immediately after giving effect to the consummation of the
transactions described in Section 3 hereof and this Section 4, the aggregate amount of the
Revolving Commitments of each Consenting Revolving Lender, New Revolving Lender
and Revolving Commitment Increase Lender is set forth opposite such Lender’s name on
Schedule III hereto.
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SECTION 5. New Tranche A Term Commitments.
(a) Subject to the terms and conditions set forth herein and in the Restated
Credit Agreement (including Sections 2.02 and 2.03 thereof), each Lender agrees to make
a New Tranche A Term Loan denominated in dollars to the Borrower on the Restatement
Effective Date in a principal amount not exceeding its New Tranche A Term
Commitment. Amounts repaid or prepaid in respect of the New Tranche A Term Loans
may not be reborrowed. The proceeds of the New Tranche A Term Loans shall be used
(i) first, on the Restatement Effective Date, to prepay in full the principal amount of
Tranche A Term Loans (as defined in the Existing Credit Agreement), together with all
accrued but unpaid interest thereon, outstanding as of the Restatement Effective Date, (ii)
second, on the Restatement Effective Date, to pay fees and expenses in respect of this
Agreement pursuant to Section 12 hereof and (iii) third, to the extent of any such
proceeds remaining, for working capital and general corporate purposes (including
acquisitions permitted under the Restated Credit Agreement) of Holdings, the Borrower
and the Restricted Subsidiaries.
(b) On and after the Restatement Effective Date, after giving effect to the
prepayment referenced in clause (i) of the second sentence of Section 5(a) hereof, (i) each
reference to the term “Tranche A Term Loans” in the Restated Credit Agreement and in
any other Loan Document shall mean the New Tranche A Term Loans and (ii) each
reference to “Tranche A Term Lender” in the Restated Credit Agreement shall mean the
New Tranche A Term Lenders.
SECTION 6. Conditions. The consummation of the transactions set forth
in Sections 3, 4 and 5 hereof shall be subject to the satisfaction of the following
conditions precedent:
(a) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders) of Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇
LLP, counsel for Holdings, the Borrower and the Restricted Subsidiaries, (i) dated as of
the Restatement Effective Date and (ii) covering such matters relating to Holdings, the
Borrower and the other Loan Parties or this Agreement as the Administrative Agent shall
reasonably request. Each of Holdings and the Borrower hereby requests such counsel to
deliver such opinion.
(b) 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 of Holdings, the Borrower and the other
Loan Parties, the authorization of the transactions contemplated by this Agreement and
any other legal matters relating to Holdings, the Borrower and the other Loan Parties or
this Agreement, all in form and substance reasonably satisfactory to the Administrative
Agent and its counsel.
(c) The Administrative Agent shall have received a certificate, dated the
Restatement Effective Date and signed by a Financial Officer or the President or a Vice
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President of the Borrower, confirming that, after giving effect to this Agreement, no
Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received a certificate, dated the
Restatement Effective Date and signed by a Financial Officer or the President or a Vice
President of the Borrower, confirming that the representations and warranties of each
Loan Party set forth in the Loan Documents shall be true and correct in all material
respects (or, in the case of representations and warranties qualified as to materiality, in all
respects) on and as of the Restatement Effective Date, except in the case of any such
representation and warranty that expressly relates to a prior date, in which case such
representation and warranty shall be true and correct in all material respects (or in all
respects, as applicable) as of such earlier date.
(e) The Administrative Agent shall have received, at least five Business
Days prior to the Restatement Effective Date, all documentation and other information
required by bank regulatory authorities under applicable “know your customer” and anti-
money laundering rules and regulations, including, without limitation, the USA
PATRIOT Act, that has been requested at least ten Business Days prior to the
Restatement Effective Date.
(f) The Administrative Agent shall have received, to the extent invoiced
at least two Business Days prior to the Effective Date, reimbursement or payment of all
fees and reasonable out-of-pocket expenses (including fees, charges and disbursements of
counsel), in each case required to be paid or reimbursed by Holdings or the Borrower on
the Effective Date under any agreement entered into by any of the Arrangers, the
Administrative Agent and the Lenders, on the one hand, and Holdings or the Borrower,
on the other hand (including the fees and expenses referenced in Section 12 hereof).
(g) The Borrower shall have delivered to the Administrative Agent the
notice required by Section 2.03 of the Restated Credit Agreement with respect to (i) the
New Tranche A Term Loans to be made on the Restatement Effective Date and (ii) the
Revolving Loans to be made on the Restatement Effective Date as contemplated by
Section 4(d) hereof.
(h) The Borrower shall have paid to the Administrative Agent, for the
account of the Lenders and the Issuing Banks, all unpaid interest and fees in respect of
the Revolving Commitments and the Revolving Loans that have accrued through (but not
including) the Restatement Effective Date.
SECTION 7. Reaffirmation.
(a) Each of the Loan Parties party hereto hereby consents to this
Agreement and the transactions contemplated hereby and hereby confirms its guarantees,
pledges, grants of security interests and other agreements, as applicable, under each of the
Security Documents to which it is party and agrees that, notwithstanding the
effectiveness of this Agreement and the consummation of the transactions contemplated
hereby (including, without limitation, the amendment and restatement of the Existing
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Credit Agreement), such guarantees, pledges, grants of security interests and other
agreements of such Loan Parties shall continue to be in full force and effect and shall
accrue to the benefit of the Secured Parties under the Restated Credit Agreement. Each
of the Loan Parties party hereto further agrees to take any action that may be required
under any applicable law or that is reasonably requested by the Administrative Agent to
ensure compliance by the Borrower with Section 5.12 of the Restated Credit Agreement
and hereby reaffirms its obligations under each similar provision of each Security
Document to which it is a party.
(b) Each of the Loan Parties party hereto hereby confirms and agrees that
the Tranche A Term Loans (as defined in the Existing Credit Agreement) (but only prior
to the prepayment thereof as contemplated by Section 5 hereof), the Revolving Loans, the
Letters of Credit and the Swingline Loans (in each case, if any) have constituted and
continue to constitute, and the New Tranche A Term Loans shall, upon the funding
thereof pursuant to Section 5 hereof, constitute, Obligations (or any word of like import)
under the Security Documents.
SECTION 8. Effectiveness; Counterparts; Amendments. This Agreement
shall become effective when copies hereof that, when taken together, bear the signatures
of Holdings, the Borrower, each other Loan Party listed on the signature pages hereto, the
Required Lenders (as such term is defined in the Existing Credit Agreement, determined
after giving effect to the transactions contemplated by Section 3 hereof), each Revolving
Lender (as such term is defined in the Existing Credit Agreement, determined after giving
effect to the transactions contemplated by Section 3 hereof), each Revolving
Commitment Increase Lender, each New Tranche A Term Lender, the Administrative
Agent, each Issuing Bank and the Swingline Lender shall have been received by the
Administrative Agent. This Agreement may not be amended nor may any provision
hereof be waived except pursuant to a writing signed by each of the parties hereto. This
Agreement may be executed in two or more counterparts, each of which shall constitute
an original but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by facsimile or
other electronic transmission shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 9. No Novation.
(a) Until this Agreement becomes effective in accordance with its terms
and the Restatement Effective Date shall have occurred, the Existing Credit Agreement
shall remain in full force and effect and shall not be affected hereby. On and after the
Restatement Effective Date, all obligations of the Borrower under the Existing Credit
Agreement shall become obligations of the Borrower under the Restated Credit
Agreement and the provisions of the Existing Credit Agreement shall be superseded by
the provisions of the Restated Credit Agreement.
(b) Without limiting the generality of the foregoing, this Agreement shall
not extinguish the Loans outstanding under the Existing Credit Agreement or any other
obligations for the payment of money outstanding under the Existing Credit Agreement
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or release the Liens granted under or the priority of any Security Document or any
security therefor. Nothing herein contained shall be construed as a substitution or
novation of the Loans outstanding under the Existing Credit Agreement or any other
obligations for the payment of money outstanding under the Existing Credit Agreement,
in each case which shall remain outstanding on and after the Restatement Effective Date
as modified hereby. Nothing implied herein shall be construed as a release or other
discharge of Holdings, the Borrower or any of its Subsidiaries under any Loan Document
from any of its obligations and liabilities as “Holdings”, a “Borrower”, a “Grantor” or a
“Guarantor” under the Existing Credit Agreement or the Loan Documents.
Notwithstanding any provision of this Agreement, the provisions of Sections 2.15, 2.16,
2.17 and 9.03 of the Existing Credit Agreement as in effect immediately prior to the
Restatement Effective Date will continue to be effective as to all matters arising out of or
in any way related to facts or events existing or occurring prior to the Restatement
Effective Date.
(c) On and after the Restatement Effective Date, any reference in the
Loan Documents to the Existing Credit Agreement shall mean the Restated Credit
Agreement.
SECTION 10. Applicable Law; Waiver of Jury Trial. (a) THIS
AGREEMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF
ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED
UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
(b) EACH PARTY HERETO HEREBY AGREES AS SET FORTH
IN SECTIONS 9.09(b), 9.09(c), 9.09(d) AND 9.10 OF THE CREDIT AGREEMENT
AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
SECTION 11. Notices. All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Restated Credit Agreement.
SECTION 12. Fees and Expenses.
(a) The Borrower agrees to pay to the Administrative Agent, for the
account of each Consenting Revolving Lender, each New Revolving Lender, each
Revolving Commitment Increase Lender and each New Tranche A Term Lender, an
upfront fee in an amount previously agreed between the Borrower and such Lenders. The
fees payable pursuant to this Section 12(a) will be paid in dollars in immediately
available funds on the Restatement Effective Date.
(b) Notwithstanding anything herein to the contrary, with respect to the
transactions contemplated by this Agreement, the Administrative Agent hereby agrees to
waive payment of the processing and recordation fee of $3,500 to the extent such fee is
required under Section 9.04(b)(ii) of the Credit Agreement.
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(c) Each Lender that has separately notified the Borrower that it has
agreed to waive payment of the break funding costs required to be paid under Section
2.16 of the Credit Agreement in connection with the transactions contemplated by
Section 3 hereof hereby agrees to such waiver.
(d) The Borrower agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses in connection with this Agreement to the extent
required under Section 9.03 of the Credit Agreement.
SECTION 13. Headings. The Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.
[Signature Pages Follow]
[Amendment and Restatement Agreement Signature Page]
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LENDERS
SIGNATURE PAGE TO AMENDMENT AND
RESTATEMENT AGREEMENT AMONG
VECTRUS, INC., VECTRUS SYSTEMS
CORPORATION, THE OTHER LOAN PARTIES
PARTY THERETO, THE LENDERS AND
ISSUING BANKS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS
ADMINISTRATIVE AGENT
Name of Institution:
By
Name:
Title:
For institutions that require a second signature:
By
Name:
Title:
Check all that apply:
New Revolving Lender: _____
Consenting Revolving Lender: _____
Revolving Commitment Increase Lender: _____
New Tranche A Term Lender: ____
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SCHEDULE I
New Revolving Lenders, Consenting Revolving Lenders and Revolving Commitment
Increase Lender
New Revolving Lender Revolving Commitment
Bank of America, N.A. $6,095,000.00
TD Bank, N.A. $3,047,500.00
Comerica Bank $3,047,500.00
Consenting Revolving Lender
JPMorgan Chase Bank, N.A. $14,000,000.00
SunTrust Bank $13,935,000.00
U.S. Bank National Association $13,935,000.00
Citibank, N.A. $7,000,000.00
Bank of the West $5,230,000.00
Synovus Bank $5,230,000.00
Banco de Sabadell, S.A., Miami Branch $3,480,000.00
Revolving Commitment Increase Lender
JPMorgan Chase Bank, N.A. $4,000,000.00
SunTrust Bank $4,065,000.00
U.S. Bank National Association $4,065,000.00
Citibank, N.A. $11,000,000.00
Bank of the West $6,770,000.00
Bank of America, N.A. $5,905,000.00
TD Bank, N.A. $2,952,500.00
Comerica Bank $2,952,500.00
Synovus Bank $770,000.00
[[▇▇▇▇▇▇▇]]
Banco de Sabadell, S.A., Miami Branch $2,520,000.00
TOTAL: $120,000,000.00
[[3680588]]
SCHEDULE II
New Tranche A Term Lenders
New Tranche A Term Lender New Tranche A Term Commitment
JPMorgan Chase Bank, N.A. $12,000,000.00
SunTrust Bank $12,000,000.00
U.S. Bank National Association $12,000,000.00
Citibank, N.A. $12,000,000.00
Bank of the West $8,000,000.00
Bank of America, N.A. $8,000,000.00
TD Bank, N.A. $4,000,000.00
Comerica Bank $4,000,000.00
Synovus Bank $4,000,000.00
Banco de Sabadell, S.A., Miami Branch $4,000,000.00
TOTAL: $80,000,000.00
[[3680588]]
SCHEDULE III
Revolving Commitment
Revolving Lenders Revolving Commitment
JPMorgan Chase Bank, N.A. $18,000,000.00
SunTrust Bank $18,000,000.00
U.S. Bank National Association $18,000,000.00
Citibank, N.A. $18,000,000.00
Bank of the West $12,000,000.00
Bank of America, N.A. $12,000,000.00
TD Bank, N.A. $6,000,000.00
Comerica Bank $6,000,000.00
Synovus Bank $6,000,000.00
Banco de Sabadell, S.A., Miami Branch $6,000,000.00
TOTAL: $120,000,000.00
EXHIBIT A TO
AMENDMENT AND RESTATEMENT AGREEMENT
[[3680601]]
CREDIT AGREEMENT
dated as of
September 17, 2014,
as amended and restated as of November 15, 2017,
among
VECTRUS, INC.,
VECTRUS SYSTEMS CORPORATION,
as the Borrower,
The Lenders and Issuing Banks Party Hereto,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
___________________________
JPMORGAN CHASE BANK, N.A.,
CITIBANK, N.A.,
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
and U.S. BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners
CITIBANK, N.A., SUNTRUST BANK and U.S. BANK
NATIONAL ASSOCIATION,
as Co-Syndication Agents
[CS&M Ref. 6702-120]
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms ....................................................................................................... 1
SECTION 1.02. Classification of Loans and Borrowings ............................................................. 43
SECTION 1.03. Terms Generally .................................................................................................. 43
SECTION 1.04. Accounting Terms; GAAP .................................................................................. 44
SECTION 1.05. Pro Forma Calculations ....................................................................................... 44
SECTION 1.06. Exchange Rates; Currency Equivalents .............................................................. 44
ARTICLE II
The Credits
SECTION 2.01. Commitments ...................................................................................................... 45
SECTION 2.02. Loans and Borrowings ........................................................................................ 46
SECTION 2.03. Requests for Borrowings ..................................................................................... 47
SECTION 2.04. Swingline Loans .................................................................................................. 48
SECTION 2.05. Letters of Credit .................................................................................................. 49
SECTION 2.06. Funding of Borrowings ....................................................................................... 56
SECTION 2.07. Interest Elections ................................................................................................. 56
SECTION 2.08. Termination and Reduction of Commitments ..................................................... 58
SECTION 2.09. Repayment of Loans; Evidence of Debt ............................................................. 58
SECTION 2.10. Amortization of Term Loans ............................................................................... 59
SECTION 2.11. Prepayment of Loans........................................................................................... 60
SECTION 2.12. Fees ..................................................................................................................... 63
SECTION 2.13. Interest ................................................................................................................. 64
SECTION 2.14. Alternate Rate of Interest .................................................................................... 65
SECTION 2.15. Increased Costs ................................................................................................... 66
SECTION 2.16. Break Funding Payments .................................................................................... 68
SECTION 2.17. Taxes ................................................................................................................... 68
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs ............................ 72
SECTION 2.19. Mitigation Obligations; Replacement of Lenders ............................................... 74
SECTION 2.20. Defaulting Lenders .............................................................................................. 75
SECTION 2.21. Incremental Extensions of Credit ........................................................................ 76
SECTION 2.22. Extension of Maturity Date ................................................................................. 80
SECTION 2.23. Refinancing Facilities.......................................................................................... 82
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers .......................................................................................... 84
SECTION 3.02. Authorization; Due Execution and Delivery; Enforceability .............................. 84
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SECTION 3.03. Governmental Approvals; No Conflicts .............................................................. 84
SECTION 3.04. Financial Condition; No Material Adverse Change ............................................ 85
SECTION 3.05. Properties ............................................................................................................ 85
SECTION 3.06. Litigation and Environmental Matters ................................................................ 86
SECTION 3.07. Compliance with Laws ........................................................................................ 86
SECTION 3.08. Anti-Terrorism Laws; Anti Corruption Laws ..................................................... 86
SECTION 3.09. Investment Company Status ................................................................................ 87
SECTION 3.10. Federal Reserve Regulations ............................................................................... 87
SECTION 3.11. Taxes ................................................................................................................... 87
SECTION 3.12. ERISA ................................................................................................................. 87
SECTION 3.13. Disclosure ............................................................................................................ 87
SECTION 3.14. Subsidiaries ......................................................................................................... 87
SECTION 3.15. Labor Matters ...................................................................................................... 88
SECTION 3.16. Solvency .............................................................................................................. 88
SECTION 3.17. Collateral Matters ................................................................................................ 88
SECTION 3.18. Designation as Senior Debt ................................................................................. 89
SECTION 3.19. EEA Financial Institution .................................................................................... 89
ARTICLE IV
Conditions
SECTION 4.01. [Reserved] ........................................................................................................... 89
SECTION 4.02. [Reserved] ........................................................................................................... 89
SECTION 4.03. Each Credit Event ............................................................................................... 89
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ...................................................... 90
SECTION 5.02. Notices of Material Events .................................................................................. 92
SECTION 5.03. Information Regarding Collateral ....................................................................... 92
SECTION 5.04. Existence; Conduct of Business .......................................................................... 93
SECTION 5.05. Payment of Obligations ....................................................................................... 93
SECTION 5.06. Maintenance of Properties ................................................................................... 93
SECTION 5.07. Insurance ............................................................................................................. 93
SECTION 5.08. Books and Records; Inspection and Audit Rights ............................................... 94
SECTION 5.09. Compliance with Laws ........................................................................................ 94
SECTION 5.10. Use of Proceeds; Letters of Credit ...................................................................... 94
SECTION 5.11. Additional Subsidiaries ....................................................................................... 95
SECTION 5.12. Further Assurances .............................................................................................. 95
SECTION 5.13. Post-Effective Date Matters ................................................................................ 96
SECTION 5.14. Designation of Subsidiaries ................................................................................. 96
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities .............................................................. 97
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SECTION 6.02. Liens .................................................................................................................... 99
SECTION 6.03. Fundamental Changes ....................................................................................... 101
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions .......................... 102
SECTION 6.05. Asset Sales ........................................................................................................ 105
SECTION 6.06. Sale and Leaseback Transactions ...................................................................... 107
SECTION 6.07. Hedging Agreements ......................................................................................... 107
SECTION 6.08. Restricted Payments; Certain Payments of Junior Indebtedness ....................... 107
SECTION 6.09. Transactions with Affiliates .............................................................................. 109
SECTION 6.10. Restrictive Agreements ..................................................................................... 110
SECTION 6.11. Amendment of Material Documents ................................................................. 111
SECTION 6.12. Interest Expense Coverage Ratio ...................................................................... 111
SECTION 6.13. Total Leverage Ratio ......................................................................................... 111
SECTION 6.14. Changes in Fiscal Periods ................................................................................. 111
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default .............................................................................................. 111
SECTION 7.02. Exclusion of Certain Subsidiaries ..................................................................... 114
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices .............................................................................................................. 119
SECTION 9.02. Waivers; Amendments ...................................................................................... 121
SECTION 9.03. Expenses; Indemnity; Damage Waiver ............................................................. 124
SECTION 9.04. Successors and Assigns ..................................................................................... 126
SECTION 9.05. Survival ............................................................................................................. 131
SECTION 9.06. Integration; Effectiveness .................................................................................. 132
SECTION 9.07. Severability ....................................................................................................... 132
SECTION 9.08. Right of Setoff ................................................................................................... 132
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process ........................... 132
SECTION 9.10. WAIVER OF JURY TRIAL ............................................................................. 133
SECTION 9.11. Headings ............................................................................................................ 133
SECTION 9.12. Confidentiality .................................................................................................. 133
SECTION 9.13. Interest Rate Limitation..................................................................................... 134
SECTION 9.14. Release of Liens and Guarantees ...................................................................... 134
SECTION 9.15. USA PATRIOT Act Notice .............................................................................. 135
SECTION 9.16. No Fiduciary Relationship ................................................................................ 135
SECTION 9.17. Non-Public Information .................................................................................... 135
SECTION 9.18. Authorization to Distribute Certain Materials to Public-▇▇▇▇▇▇; Security
Clearances ................................................................................................... 136
SECTION 9.19. Acknowledgment and Consent to Bail-In of EEA Financial Institutions ......... 136
SECTION 9.20. Restatement of Original Credit Agreement ....................................................... 137
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SECTION 9.21. ▇▇▇▇ Events ..................................................................................................... 137
v
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SCHEDULES:
Schedule 1.01 — Mortgaged Property
Schedule 2.01 — Commitments
Schedule 3.14 — Subsidiaries
Schedule 6.01(b) — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.04 — Existing Investments
Schedule 6.10 — Existing Restrictions
EXHIBITS:
Exhibit A — Form of Assignment and Assumption
Exhibit B — [Reserved]
Exhibit C — [Reserved]
Exhibit D — Form of Supplemental Perfection Certificate
Exhibit E — [Reserved]
Exhibit F — Auction Procedures
Exhibit G — Form of Affiliated Lender Assignment and Assumption
Exhibit H — Form of Maturity Date Extension Request
Exhibit I-1 — Form of U.S. Tax Compliance Certificate for Foreign Lenders that are
not Partnerships for U.S. Federal Income Tax Purposes
Exhibit I-2 — Form of U.S. Tax Compliance Certificate for Non-U.S. Participants
that are Partnerships for U.S. Federal Income Tax Purposes
Exhibit I-3 — Form of U.S. Tax Compliance Certificate for Non-U.S. Participants
that are not Partnerships for U.S. Federal Income Tax Purposes
Exhibit I-4 — Form of U.S. Tax Compliance Certificate for Foreign Lenders
that are Partnerships for U.S. Federal Income Tax Purposes
[[3680601]]
CREDIT AGREEMENT dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (this “Agreement”),
among VECTRUS, INC., an Indiana corporation, VECTRUS SYSTEMS
CORPORATION, a Delaware corporation, the LENDERS and ISSUING
BANKS party hereto and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.
The Borrower has requested that (a) the Tranche A Term Lenders extend credit
in the form of Tranche A Term Loans on the Restatement Effective Date (such term, and each
other term used but not otherwise defined in this preamble, to have the meanings set forth in
Section 1.01) in an aggregate principal amount not in excess of $80,000,000 and (b) the
Revolving Lenders extend credit in the form of Revolving Loans, the Swingline Lender extend
credit in the form of Swingline Loans and the Issuing Banks issue Letters of Credit, in each case
at any time and from time to time during the Revolving Availability Period such that the
Aggregate Revolving Exposure will not exceed $120,000,000 at any time. The proceeds of the
Tranche A Term Loans, together with cash on hand, will be used (i) first, on the Restatement
Effective Date, to prepay in full the principal amount of the Tranche A Term Loans (as defined in
the Original Credit Agreement), together with accrued but unpaid interest thereon, outstanding as
of the Restatement Effective Date, (ii) second, on the Restatement Effective Date, to pay fees and
expenses in respect of this Agreement and (iii) third, to the extent of any such proceeds
remaining, for working capital and general corporate purposes (including acquisitions permitted
by this Agreement) of Holdings, the Borrower and the Restricted Subsidiaries. The proceeds of
the Revolving Loans and of the Swingline Loans will be used for working capital and other
general corporate purposes (including acquisitions permitted by this Agreement) of Holdings, the
Borrower and the Restricted Subsidiaries. Letters of Credit will be used by Holdings, the
Borrower and the Restricted Subsidiaries for general corporate purposes.
The Lenders are willing to extend such credit to the Borrower, and the Issuing
Banks are willing to issue Letters of Credit for the account of the Borrower, on the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement (including in the
introductory paragraphs hereof), the following terms have the meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
“Additional Lender” has the meaning assigned to such term in Section 2.21(c).
“Adjusted EURIBO Rate” means, with respect to any EURIBOR Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100
of 1%) equal to the EURIBO Rate for such Interest Period.
“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for
any Interest Period (or, solely for purposes of clause (c) of the defined term “Alternate Base
Rate”, for purposes of determining the Alternate Base Rate as of any date), an interest rate per
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annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) for Borrowings
denominated in dollars, (i) the LIBO Rate for dollars for such Interest Period (or such date, as
applicable) multiplied by (ii) the Statutory Reserve Rate and (b) for Borrowings denominated in a
Permitted Foreign Currency (other than Euro), the LIBO Rate for such currency for such Interest
Period.
“Administrative Agent” means JPMorgan (including its branches and affiliates),
in its capacity as administrative agent hereunder and under the other Loan Documents, and its
successors in such capacity as provided in Article VIII.
“Administrative Questionnaire” means an administrative questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Affiliated Lender Assignment and Assumption” means an assignment and
assumption entered into by a Lender and a Purchasing Borrower Party (with the consent of any
party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in
the form of Exhibit G or any other form approved by the Administrative Agent.
“Aggregate Revolving Commitment” means, at any time, the sum of the
Revolving Commitments of all the Revolving Lenders at such time.
“Aggregate Revolving Exposure” means, at any time, the sum of the Revolving
Exposures of all the Revolving Lenders at such time.
“Agreement” has the meaning assigned to such term in the introductory
statement to this Credit Agreement.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1/2 of
1.00% per annum and (c) the Adjusted LIBO Rate on such day (or, if such day is not a Business
Day, the immediately preceding Business Day) plus 1.00% per annum. If the Administrative
Agent shall have determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the NYFRB Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the terms of the
definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no longer exist. For
purposes of clause (c) above, the Adjusted LIBO Rate on any day shall be based on the LIBO
Screen Rate for a deposit in dollars and an Interest Period of one month, as such rate appears at
approximately 11:00 a.m., London time, on such day. If no LIBO Screen Rate shall be available
for an Interest Period of one month but LIBO Screen Rates shall be available for maturities both
longer and shorter than an Interest Period of one month, then the Adjusted LIBO Rate for
purposes of clause (c) above shall be based on the Interpolated Screen Rate on the applicable date
of determination. Notwithstanding the foregoing, if the Adjusted LIBO Rate (determined as
provided above) shall be less than zero, such rate shall be deemed to be zero. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO
Rate shall be effective from and including the effective date of such change in the Prime Rate, the
NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used
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as an alternate rate of interest pursuant to Section 2.14, then the Alternate Base Rate shall be the
greater of clause (a) and (b) of this definition and shall be determined without reference to clause
(c) of this definition.
“Alternative Incremental Facility Debt” means any Indebtedness incurred by the
Borrower in the form of one or more series of senior secured notes or senior unsecured notes;
provided that (i) if such Indebtedness is secured, such Indebtedness shall be secured by the
Collateral on a junior basis with the Loan Document Obligations and shall not be secured by any
property or assets of Holdings, the Borrower or any Restricted Subsidiary other than the
Collateral, (ii) the stated final maturity of such Indebtedness shall not be earlier than the Latest
Maturity Date (and such stated final maturity of such Indebtedness shall not be subject to any
conditions that could result in such stated final maturity occurring on a date that precedes the
Latest Maturity Date), and such Indebtedness shall not have a weighted average life to maturity
that is shorter than the weighted average life to maturity of the then-remaining Term Loans, (iii)
such Indebtedness shall have covenants no more restrictive, taken as a whole, than those
applicable to the Commitments and the Loans as determined in good faith by the Borrower (it
being understood that such Indebtedness may include one or more financial maintenance
covenants with which Holdings and the Borrower shall be required to comply, provided that any
such financial maintenance covenant shall also be for the benefit of all other Lenders in respect of
all Loans and Commitments outstanding at the time that such Alternative Incremental Facility
Debt is incurred), (iv) if such Indebtedness is secured, the security agreement relating to such
Indebtedness shall not be materially more favorable (when taken as a whole) to the holders
providing such Indebtedness than the existing Security Documents are to the Lenders, (v) if such
Indebtedness is secured, a trustee or note agent acting on behalf of the holders of such
Indebtedness shall have become party to customary intercreditor arrangements mutually agreed
with the Administrative Agent and (vi) such Indebtedness shall not be guaranteed by any
Subsidiaries other than the Loan Parties.
“Amendment and Restatement Agreement” means the Amendment and
Restatement Agreement dated as of November 15, 2017, among Holdings, the Borrower, the
other Loan Parties party thereto, the Lenders and Issuing Banks party thereto and the
Administrative Agent.
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction
applicable to Holdings or its subsidiaries from time to time concerning or relating to bribery,
corruption or money laundering.
“Applicable Percentage” means, at any time with respect to any Revolving
Lender, the percentage of the Aggregate Revolving Commitment represented by such Lender’s
Revolving Commitment at such time. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving Commitments most
recently in effect, giving effect to any assignments of Revolving Loans, LC Exposures and
Swingline Exposures that occur after such termination or expiration.
“Applicable Rate” means, for any day, with respect to (a) any Loan that is a
Tranche A Term Loan, a Revolving Loan or a Swingline Loan and (b) the commitment fees
payable hereunder in respect of Revolving Loans, the applicable rate per annum set forth below
under the applicable caption, based upon the Total Leverage Ratio as of the end of the fiscal
quarter of Holdings for which consolidated financial statements have most recently been
delivered to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b); provided that until
the delivery of such consolidated financial statements as of and for the fiscal year of Holdings
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ending December 31, 2017 (together with the certificate of a Financial Officer required to be
delivered by the Borrower pursuant to Section 5.01(c) together therewith), the Applicable Rate
shall be that set forth below in Level II:
Level Total Leverage Ratio
Eurocurrency
Loans and
EURIBOR Loans
ABR Loans Commitment Fee
I > 2.50 to 1.00 2.50% 1.50% 0.450%
II > 1.50 to 1.00 but < 2.50 to 1.00 2.25% 1.25% 0.400%
III > 1.00 to 1.00 but < 1.50 to 1.00 2.00% 1.00% 0.350%
IV < 1.00 to 1.00 1.75% 0.75% 0.300%
For purposes of this clause (a), each change in the Applicable Rate resulting from
a change in the Total Leverage Ratio shall be effective during the period commencing on and
including the date of delivery to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b)
of the consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that the Total
Leverage Ratio shall be deemed to be in Level I at the option of the Administrative Agent or at
the request of the Required Lenders if the Borrower fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or 5.01(b) or the certificate of
a Financial Officer required to be delivered by it pursuant to Section 5.01(c) during the period
from the expiration of the time for delivery thereof until such consolidated financial statements
and such certificate are delivered.
“Approved Fund” means, with respect to any Lender or Eligible Assignee, any
Person (other than a natural person) that is engaged in making, purchasing, holding or investing
in commercial loans and similar extensions of credit in the ordinary course of its activities and
that is administered, advised or managed by (a) such Lender or Eligible Assignee, (b) an Affiliate
of such Lender or Eligible Assignee or (c) an entity or an Affiliate of an entity that administers,
advises or manages such Lender or Eligible Assignee.
“Arrangers” means, collectively, JPMorgan, Citibank, N.A., SunTrust ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Inc. and U.S. Bank National Association, in their capacities as joint lead arrangers
and joint bookrunners for the credit facilities provided for herein.
“Assignment and Assumption” means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required
by Section 9.04) and accepted by the Administrative Agent, substantially in the form of Exhibit A
or any other form approved by the Administrative Agent.
“Auction” means an auction pursuant to which a Purchasing Borrower Party
offers to purchase Term Loans pursuant to the Auction Procedures.
“Auction Manager” means any financial institution or advisor employed by the
Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in
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connection with any Auction; provided that the Borrower shall not designate the Administrative
Agent as the Auction Manager without the written consent of the Administrative Agent (it being
understood and agreed that the Administrative Agent shall be under no obligation to agree to act
as the Auction Manager).
“Auction Procedures” means the procedures set forth in Exhibit F.
“Auction Purchase Offer” means an offer by a Purchasing Borrower Party to
purchase Term Loans of one or more Classes pursuant to an auction process conducted in
accordance with the Auction Procedures and otherwise in accordance with Section 9.04(e).
“Available Amount” means, at any time, the following (which, to the extent
cumulative, will commence accruing for the fiscal year ending December 31, 2018): (a) the sum
of (i) the sum of 50% of Excess Cash Flow for each fiscal year of Holdings in respect of which
financial statements have been delivered pursuant to Section 5.01(a) (to the extent such Excess
Cash Flow amount exceeds $0) (provided that any increase in the Available Amount pursuant to
this clause (i) shall not be used to make any Restricted Payment unless, concurrently with the
making of such Restricted Payment, the Borrower prepays Term Borrowings in an aggregate
principal amount equal to such Restricted Payment), plus (ii) the Net Proceeds from any sale or
issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings to the extent
such Net Proceeds are received by the Borrower, plus (iii) the aggregate amount of prepayments
declined by the Term Lenders and retained by the Borrower pursuant to Section 2.11(e) (provided
that any increase in the Available Amount pursuant to this clause (iii) shall not be used to make
any Restricted Payment) plus (iv) the amount of any investment made using the Available
Amount of the Borrower or any of its Restricted Subsidiaries in any Unrestricted Subsidiary that
has been re-designated as a Restricted Subsidiary or that has been merged, amalgamated or
consolidated with or into the Borrower or any of its Restricted Subsidiaries minus (b) the sum at
such time of (i) [reserved], plus (ii) investments, loans and advances previously or concurrently
made under Section 6.04(r) in reliance on the Available Amount, plus (iii) Restricted Payments
previously or concurrently made under Section 6.08(a)(ix) in reliance on the Available Amount,
plus (iv) prepayments of Indebtedness previously or concurrently made under Section 6.08(b)(v)
in reliance on the Available Amount. For purposes of determining the Available Amount at any
time, any amount invested, loaned or advanced under Section 6.04(r) or prepaid under
Section 6.08(b)(v) shall be deemed to have first decreased that portion of the Available Amount
at such time that is comprised of the amounts referenced in clauses (a)(i) and (a)(iii) above before
decreasing that portion of the Available Amount at such time that is comprised of the amounts
referenced in clauses (a)(ii) and (a)(iv) above.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers
by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial
Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule.
“Bankruptcy Event” means, with respect to any Person, that such Person has
become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged
with the reorganization or liquidation of its business appointed for it, or, in the good faith
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determination of the Administrative Agent, has taken any action in furtherance of, or indicating
its consent to, approval of or acquiescence in, any such proceeding or appointment; provided that
a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition
of any ownership interest, in such Person by a Governmental Authority; provided further that
such ownership interest does not result in or provide such Person with immunity from the
jurisdiction of courts within the United States of America or from the enforcement of judgments
or writs of attachment on its assets or permit such Person (or such Governmental Authority) to
reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Board of Governors” means the Board of Governors of the Federal Reserve
System of the United States of America.
“Borrower” means Vectrus Systems Corporation, a Delaware corporation.
“Borrowing” means (a) Loans of the same Class, Type and currency, made,
converted or continued on the same date and, in the case of Eurocurrency Loans and EURIBOR
Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“Borrowing Minimum” means (a) in the case of a Eurocurrency Borrowing
denominated in dollars, $1,000,000, (b) in the case of a Eurocurrency Borrowing denominated in
any Permitted Foreign Currency or a EURIBOR Borrowing, the smallest amount of such
Permitted Foreign Currency that is an integral multiple of 100,000 units of such currency and that
has a Dollar Equivalent in excess of $1,000,000 and (c) in the case of an ABR Borrowing,
$500,000.
“Borrowing Multiple” means (a) in the case of a Eurocurrency Borrowing
denominated in dollars, $500,000, (b) in the case of a Eurocurrency Borrowing denominated in
any Permitted Foreign Currency or a EURIBOR Borrowing, the smallest amount of such
Permitted Foreign Currency that is an integral multiple of 100,000 units of such currency and that
has a Dollar Equivalent in excess of $500,000 and (c) in the case of an ABR Borrowing,
$100,000.
“Borrowing Request” means a request by the Borrower for a Borrowing in
accordance with Section 2.03 or 2.04, as applicable, which shall be, in the case of a written
Borrowing Request, in a form approved by the Administrative Agent and otherwise consistent
with the requirements of Section 2.03 or 2.04, as applicable.
“Business Day” means any day that is not a Saturday, a Sunday or any other day
on which commercial banks in New York City are authorized or required by law to remain
closed; provided that (a) when used in connection with a Eurocurrency Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in deposits in the
applicable currency in the London interbank market or any day on which banks in London are not
open for general business and (b) when used in connection with any EURIBOR Loan, the term
“Business Day” shall also exclude any day which is not a TARGET Day or any day on which
banks in London are not open for general business.
“Calculation Date” means (a) the last Business Day of each calendar quarter,
(b) each date (with such date to be reasonably determined by the Administrative Agent) that is on
or about the date of (i) a Borrowing Request or an Interest Election Request with respect to any
Revolving Loan or (ii) the issuance, amendment, renewal or extension of a Letter of Credit and
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(c) if an Event of Default has occurred and is continuing, any Business Day as determined by the
Administrative Agent in its sole discretion.
“Capital Expenditures” means, for any period, (a) the additions to property, plant
and equipment and other capital expenditures of Holdings, the Borrower and the Restricted
Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of Holdings
for such period prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by
Holdings, the Borrower and the Restricted Subsidiaries during such period, but excluding in each
case any such expenditure (i) constituting reinvestment of the Net Proceeds of any event
described in clause (a) or (b) of the definition of the term “Prepayment Event”, to the extent
permitted by Section 2.11(c), (ii) made by Holdings, the Borrower or any Restricted Subsidiary as
payment of the consideration for any acquisition permitted by this Agreement, (iii) made by
Holdings, the Borrower or any Restricted Subsidiary to effect leasehold improvements to any
property leased by Holdings, the Borrower or such Restricted Subsidiary as lessee, to the extent
that such expenses have been reimbursed by the landlord, (iv) in the form of a substantially
contemporaneous exchange of similar property, plant, equipment or other capital assets, except to
the extent of cash or other consideration (other than the assets so exchanged), if any, paid or
payable by Holdings, the Borrower or any Restricted Subsidiary and (v) made with the Net
Proceeds from the issuance of Qualified Equity Interests.
“Capital Lease Obligations” of any Person means the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person under GAAP, and the
amount of such obligations shall be the capitalized amount thereof determined in accordance with
GAAP. For purposes of Section 6.02, a Capital Lease Obligation shall be deemed to be secured
by a Lien on the property being leased and such property shall be deemed to be owned by the
lessee.
“Cash Management Services” means the treasury management services
(including controlled disbursements, zero balance arrangements, cash sweeps, corporate credit
card and other card services, automated clearinghouse transactions, return items, overdrafts,
temporary advances, interest and fees and interstate depository network services) provided to
Holdings, the Borrower or any Restricted Subsidiary.
“Change in Control” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, of any Equity Interest in the Borrower by any Person other
than Holdings; (b) the acquisition of ownership, directly or indirectly, beneficially or of record,
by any Person or group (within the meaning of the Exchange Act and the rules of the SEC
thereunder) of 35% or more on a fully diluted basis of the Voting Equity Interests in Holdings; or
(c) the occupation of a majority of the seats (other than vacant seats) on the board of directors of
Holdings by Persons who were not (i) directors of Holdings on the Restatement Effective Date,
(ii) nominated by the board of directors of Holdings or (iii) appointed by directors who were
directors of Holdings on the Restatement Effective Date or were so nominated as provided in
subclause (ii) of this clause (c).
“Change in Law” means the occurrence, after the Restatement Effective Date (or
with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of
the following: (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or
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issuance of any request, rule, guideline or directive (whether or not having the force of law) by
any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (i)
the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules,
guidelines or directives promulgated thereunder or issued in connection therewith and (ii) all
requests, rules, guidelines or directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or the
United States of America or foreign regulatory authorities, in each case pursuant to Basel III, in
each case shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted,
promulgated or issued.
“Charges” has the meaning assigned to such term in Section 9.13.
“Citibank” means Citibank, N.A.
“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche A Term
Loans, Incremental Term Loans or Swingline Loans, (b) any Commitment, refers to whether such
Commitment is a Revolving Commitment, Tranche A Term Commitment or a Commitment in
respect of any Incremental Term Loans and (c) any Lender, refers to whether such Lender has a
Loan or Commitment with respect to a particular Class. Incremental Term Loans that have
different terms and conditions (together with the Commitments in respect thereof) shall be
construed to be in different Classes.
“Code” means the Internal Revenue Code of 1986.
“Collateral” means any and all assets, whether real or personal, tangible or
intangible, on which Liens are purported to be granted pursuant to the Security Documents as
security for the Obligations.
“Collateral Agreement” means the Guarantee and Collateral Agreement dated as
of September 17, 2014 (as amended, supplemented or otherwise modified from time to time and
as reaffirmed pursuant to the Amendment and Restatement Agreement), among Holdings, the
Borrower, the Subsidiary Loan Parties and the Administrative Agent, or any other collateral
agreement reasonably requested (in accordance with the Collateral and Guarantee Requirement)
by the Administrative Agent.
“Collateral and Guarantee Requirement” means, at any time, the requirement
that:
(a) the Administrative Agent shall have received from Holdings, the Borrower
and each Designated Subsidiary either (i) a counterpart of the Collateral Agreement (or, in the
case of a Person that became a Designated Subsidiary after the Funding Date (as defined in the
Original Credit Agreement) but prior to the Restatement Effective Date, a supplement to the
Collateral Agreement, in the form specified therein), duly executed and delivered on behalf of
such Person or (ii) in the case of any Person that becomes a Designated Subsidiary after the
Restatement Effective Date, a supplement to the Collateral Agreement, in the form specified
therein, duly executed and delivered on behalf of such Person, together with opinions and
documents of the type referred to in Sections 6(a) and 6(b) of the Amendment and Restatement
Agreement with respect to such Person;
(b) (i) all outstanding Equity Interests of the Borrower and each Restricted
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Subsidiary that is a Material Subsidiary, in each case owned by any Loan Party, shall have been
pledged pursuant to the Collateral Agreement; provided that the Loan Parties shall not be required
to pledge (x) more than 65% of the outstanding Voting Equity Interests of any first-tier Foreign
Subsidiary or any Foreign-Subsidiary Holding Company, (y) any of the outstanding Voting
Equity Interests of any Foreign Subsidiary that is not a first-tier Foreign Subsidiary or (z) any
Equity Interests to the extent that a pledge of such Equity Interests is prohibited by any
requirements of law or contract (so long as any contractual restriction is not incurred in
contemplation of such entity becoming a subsidiary of Holdings) and (ii) the Administrative
Agent shall, to the extent required by the Collateral Agreement, have received certificates or other
instruments representing all such Equity Interests, together with undated stock powers or other
instruments of transfer with respect thereto endorsed in blank (provided that no Loan Party shall
have any obligation to deliver a certificate or other instrument representing any such Equity
Interest if such Equity Interest is uncertificated);
(c) all Indebtedness of Holdings, the Borrower and each Subsidiary, and all other
Indebtedness of any Person in a principal amount of $5,000,000 or more, in each case, that is
owing to any Loan Party shall be evidenced by a promissory note and shall have been pledged
pursuant to the Collateral Agreement, and the Administrative Agent shall have received all such
promissory notes (or, if applicable, in lieu thereof, the Global Intercompany Note), together with
undated instruments of transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the Administrative Agent to be
filed, registered or recorded to create the Liens intended to be created by the Security Documents
and perfect such Liens to the extent required by, and with the priority required by, the Security
Documents shall have been filed, registered or recorded or delivered to the Administrative Agent
for filing, registration or recording;
(e) the Administrative Agent shall have received (i) counterparts of a Mortgage
with respect to each Mortgaged Property duly executed and delivered by the record owner of such
Mortgaged Property, (ii) a policy or policies of title insurance issued by a nationally recognized
title insurance company insuring the Lien of each such Mortgage as a valid and enforceable first
Lien on the Mortgaged Property described therein, free of any other Liens except as expressly
permitted by Section 6.02, together with such endorsements, coinsurance and reinsurance as the
Administrative Agent may reasonably request, (iii) if any Mortgaged Property is located in an
area identified by the Federal Emergency Management Agency (or any successor agency) as a
“special flood hazard area” and flood insurance coverage is available under the National Flood
Insurance Program, evidence of such flood insurance as may be required under Section 5.07,
together with “life of loan” flood zone determinations, and (iv) such surveys, abstracts,
appraisals, legal opinions and other documents as the Administrative Agent or the Required
Lenders may reasonably request with respect to any such Mortgage or Mortgaged Property;
(f) the Administrative Agent shall have received a counterpart, duly executed and
delivered by the applicable Loan Party and the applicable depositary bank or securities
intermediary, as applicable, of a Control Agreement with respect to (i) each deposit account
maintained by any Loan Party in the United States of America with any depositary bank (other
than (A) any deposit account the funds in which are used, in the ordinary course of business,
solely for the payment of salaries and wages, workers’ compensation and similar expenses, (B)
deposit accounts the daily balance in which does not at any time exceed $100,000 for any such
account or $250,000 for all such accounts, (C) any deposit account that is a zero-balance
disbursement account and (D) any deposit account the funds in which consist solely of (1) funds
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held by Holdings, the Borrower or any Subsidiary in trust for any director, officer or employee of
Holdings, the Borrower or any Subsidiary or any employee benefit plan maintained by Holdings,
the Borrower or any Subsidiary or (2) funds representing deferred compensation for the directors
and employees of Holdings, the Borrower and the Subsidiaries) and (ii) each securities account
maintained by any Loan Party in the United States of America with any securities intermediary
(other than any securities account the securities entitlements in which consist solely of (A)
securities entitlements held by Holdings, the Borrower or any Subsidiary in trust for any director,
officer or employee of Holdings, the Borrower or any Subsidiary or any employee benefit plan
maintained by Holdings, the Borrower or any Subsidiary or (B) securities entitlements
representing deferred compensation for the directors and employees of Holdings, the Borrower
and the Subsidiaries); and
(g) each Loan Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security Documents to which it
is a party, the performance of its obligations thereunder and the granting by it of the Liens
thereunder.
The foregoing definition shall not require the creation or perfection of pledges of
or security interests in, or the obtaining of title insurance, legal opinions or other deliverables
with respect to, particular assets, rights or properties of the Loan Parties, or the provision of
Guarantees by any Designated Subsidiary, if and for so long as the Administrative Agent, in
consultation with the Borrower, reasonably determines that the cost of creating or perfecting such
pledges or security interests in such assets, rights or properties, or obtaining such title insurance,
legal opinions or other deliverables in respect of such assets, rights or properties, or providing
such Guarantees (taking into account any adverse tax consequences to the Borrower and its
Restricted Subsidiaries (including the imposition of withholding or other material Taxes on
Lenders)), shall be excessive in view of the benefits to be obtained by the Lenders therefrom.
The Administrative Agent may grant extensions of time for the creation or perfection of pledges
of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables
with respect to, particular assets, rights or properties of the Loan Parties or the provision of
Guarantees by any Designated Subsidiary where it determines that such creation or perfection of
security interests, obtaining of title insurance, legal opinions or other deliverables, or provision of
Guarantees cannot be accomplished without undue effort or expense by the time or times at
which it would otherwise be required by this Agreement or the Security Documents.
“Commitment” means (a) with respect to any Lender, such Lender’s Revolving
Commitment, Tranche A Term Commitment or commitment in respect of any Incremental Term
Loans or any combination thereof (as the context requires) and (b) with respect to the Swingline
Lender, its Swingline Commitment.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1
et seq.) and any successor statute.
“Communications” means, collectively, any notice, demand, communication,
information, document or other material provided by or on behalf of any Loan Party pursuant to
this Agreement or any other Loan Document or the transactions contemplated herein or therein
that is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of
electronic communications pursuant to Section 9.01, including through the Platform.
“Consenting Lender” has the meaning assigned to such term in Section 2.22(a).
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“Consolidated Cash Interest Expense” means, for any period, the excess of
(a) the sum of, without duplication, (i) the interest expense (including imputed interest expense in
respect of Capital Lease Obligations) of Holdings, the Borrower and the Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP, (ii) any interest or
other financing costs accrued during such period in respect of Indebtedness of Holdings, the
Borrower and the Restricted Subsidiaries that are required to be capitalized rather than included
in consolidated interest expense of Holdings for such period in accordance with GAAP, (iii) any
cash payments made during such period in respect of obligations referred to in clause (b)(iii)
below that were amortized or accrued in a previous period, and (iv) all cash dividends paid or
payable during such period in respect of Disqualified Equity Interests of Holdings; provided that
such dividends shall be multiplied by a fraction the numerator of which is one and the
denominator of which is one minus the effective combined tax rate of Holdings (expressed as a
decimal) for such period (as estimated by a Financial Officer of Holdings in good faith) minus (b)
the sum of, without duplication, (i) cash interest income of Holdings, the Borrower and the
Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with
GAAP, (ii) to the extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization or write-off of capitalized interest or other financing costs
paid in a previous period and (iii) to the extent included in such consolidated interest expense for
such period, non-cash amounts attributable to amortization of debt discounts or accrued interest
payable in kind for such period.
“Consolidated Debt” means, as of any date, the aggregate principal amount of
Indebtedness of the type specified in clauses (a), (b), (e) (but only to the extent supporting
Indebtedness of the types specified in clauses (a), (b) and (g) of the definition thereof), (f) (but
only to the extent supporting Indebtedness of the types specified in clauses (a), (b) and (g) of the
definition thereof), (g), (h) (but only to the extent issued in support of Indebtedness of others of
the types specified in clauses (a), (b) and (g) of the definition thereof) and (j) of Holdings, the
Borrower and the Restricted Subsidiaries outstanding as of such date determined on a
consolidated basis.
“Consolidated EBITDA” means, for any period, Consolidated Net Income for
such period plus (a) without duplication and (except with respect to subclause (xii) of this clause
(a)) to the extent deducted in determining such Consolidated Net Income for such period, the sum
of (i) interest expense for such period, (ii) consolidated income tax expense of Holdings, the
Borrower and the Restricted Subsidiaries for such period, (iii) depreciation and amortization
expense of Holdings, the Borrower and the Restricted Subsidiaries for such period, (iv) fees and
expenses incurred during such period in connection with the Transactions, (v) fees and expenses
incurred during such period in connection with any proposed or actual permitted merger,
acquisition, investment, asset sale, other disposition or capital markets transaction, without regard
to the consummation thereof, (vi) non-recurring charges incurred during such period in respect of
restructurings, facilities closings, relocations, headcount reductions or other similar actions,
including severance charges in respect of employee terminations, in an aggregate amount for all
such charges not to exceed, when taken together with all add-backs for such period pursuant to
subclause (xii) of this clause (a), 10.0% of Consolidated EBITDA for such period (determined
prior to giving effect to such add-backs), (vii) any non-cash charges, losses or expenses of
Holdings, the Borrower and the Restricted Subsidiaries for such period (but excluding any non-
cash charge, loss or expense in respect of an item that was included in Consolidated Net Income
in a prior period and any non-cash charge, loss or expense that relates to the write-down or write-
off of inventory, other than any write-down or write-off of inventory as a result of purchase
accounting adjustments in respect of any acquisition permitted by this Agreement), (viii) any
losses during such period attributable to early extinguishment of Indebtedness or obligations
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under any Hedging Agreement, (ix) any expense during such period relating to deferred
compensation and other equity-based compensation plans, defined benefits pension or post-
retirement benefit plans, (x) any losses during such period resulting from the sale or disposition of
any asset of Holdings, the Borrower or any Restricted Subsidiary outside the ordinary course of
business, (xi) the cumulative effect of a change in accounting principles and (xii) reasonably
identifiable and factually supportable cost savings and synergies (but without duplication of
actual cost savings and synergies), to the extent projected by the Borrower in good faith to result
from specified actions taken or expected to be taken within 12 months after the date of
determination of Consolidated EBITDA for such period, in an aggregate amount for all such costs
savings and synergies not to exceed, when taken together with all add-backs pursuant to
subclause (vi) of this clause (a), 10.0% of Consolidated EBITDA for such period (determined
prior to giving effect to such add-backs); provided that any cash payment made with respect to
any non-cash items added back in computing Consolidated EBITDA for any prior period
pursuant to this clause (a) (or that would have been added back had this Agreement been in effect
during such period) shall be subtracted in computing Consolidated EBITDA for the period in
which such cash payment is made, and minus (b) without duplication and (except for clause (iii))
to the extent included in determining such Consolidated Net Income, the sum of (i) any non-cash
gains for such period (other than any such non-cash gains (A) in respect of which cash was
received in a prior period or will be received in a future period and (B) that represent the reversal
of any accrual in a prior period for, or the reversal of any cash reserves established in a prior
period for, anticipated cash charges), (ii) any income during such period relating to deferred
compensation and other equity-based compensation plans, defined benefits pension or post-
retirement benefit plans, (iii) cash payments during such period relating to deferred compensation
and other equity-based compensation plans and cash contributions to defined benefits pension or
post-retirement benefit plans, (iv) all gains during such period resulting from the sale or
disposition of any asset of the Borrower or any Subsidiary outside the ordinary course of
business, (v) any gains during such period attributable to early extinguishment of Indebtedness or
obligations under any Hedging Agreement, (vi) the cumulative effect of a change in accounting
principles and (vii) solely for purposes of the calculation set forth in Section 6.12, cash interest
income of Holdings, the Borrower and the Restricted Subsidiaries for such period, all determined
on a consolidated basis in accordance with GAAP. In the event any Subsidiary shall be a
Subsidiary that is not wholly owned by Holdings, all amounts added back in computing
Consolidated EBITDA for any period pursuant to clause (a) above, and all amounts subtracted in
computing Consolidated EBITDA pursuant to clause (b) above, to the extent such amounts are, in
the reasonable judgment of a Financial Officer of Holdings, attributable to such Subsidiary, shall
be reduced by the portion thereof that is attributable to the non-controlling interest in such
Subsidiary.
“Consolidated Net Income” means, for any period, the net income or loss of
Holdings, the Borrower and the Restricted Subsidiaries for such period determined in accordance
with GAAP as set forth on the consolidated financial statements of Holdings, the Borrower and
the Restricted Subsidiaries for such period; provided that there shall be excluded (a) the income
of any Person (other than Holdings and the Borrower) that is not a Restricted Subsidiary, except
to the extent of the amount of cash dividends or other cash distributions actually paid by such
Person to Holdings, the Borrower or, subject to clauses (b) and (c) of this proviso, any Restricted
Subsidiary during such period, (b) the income of, and any amounts referred to in clause (a) of this
proviso paid to, any Restricted Subsidiary to the extent that, on the date of determination, the
declaration or payment of cash dividends or other cash distributions by such Restricted
Subsidiary of that income is not at the time permitted by a Requirement of Law or any agreement
or instrument applicable to such Restricted Subsidiary, unless such restrictions with respect to the
payment of cash dividends and other similar cash distributions have been legally and effectively
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waived, (c) the income or loss of, and any amounts referred to in clause (a) of this proviso paid to,
any consolidated Subsidiary that is not wholly owned by Holdings to the extent such income or
loss or such amounts are attributable to the noncontrolling interest in such consolidated
Subsidiary and (d) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies, or the dismissal or appointment of the
management, of a Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Control Agreement” means, with respect to any deposit account or securities
account maintained by any Loan Party, a control agreement in form and substance reasonably
satisfactory to the Administrative Agent, duly executed and delivered by such Loan Party and the
depositary bank or the securities intermediary, as applicable, with which such account is
maintained.
“Co-Syndication Agents” means, collectively, Citibank, SunTrust and U.S. Bank,
in their respective capacity as co-syndication agents hereunder and under the other Loan
Documents.
“Credit Party” means the Administrative Agent, each Issuing Bank, each
Swingline Lender and each other Lender.
“Declining Lender” has the meaning assigned to such term in Section 2.22(a).
“Default” means any event or condition that constitutes an Event of Default or
that upon notice, lapse of time or both would, unless cured or waived, constitute an Event of
Default.
“Defaulting Lender” means any Revolving Lender that (a) has failed, within two
Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii)
fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to
any Credit Party any other amount required to be paid by it hereunder, unless, in the case of
clause (i) above, such Revolving Lender notifies the Administrative Agent in writing that such
failure is the result of such Revolving Lender’s good faith determination that a condition
precedent to funding (specifically identified in such writing, including, if applicable, by reference
to a specific Default) has not been satisfied, (b) has notified Holdings, the Borrower or any Credit
Party in writing, or has made a public statement to the effect, that it does not intend or expect to
comply with any of its funding obligations under this Agreement (unless such writing or public
statement indicates that such position is based on such Revolving Lender’s good faith
determination that a condition precedent to funding (specifically identified in such writing,
including, if applicable, by reference to a specific Default) cannot be satisfied), (c) has failed,
within three Business Days after request by a Credit Party, made in good faith, to provide a
certification in writing from an authorized officer of such Revolving Lender that it will comply
with its obligations (and is financially able to meet such obligations) to fund prospective Loans
and participations in then outstanding Letters of Credit and Swingline Loans; provided that such
Revolving Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such
Credit Party’s receipt of such certification in form and substance satisfactory to it and the
Administrative Agent or (d) has, or has a direct or indirect parent company that has, become the
subject of a Bankruptcy Event or of a Bail-In Action. Any determination by the Administrative
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Agent that a Revolving Lender is a Defaulting Lender under any one or more of clauses (a)
through (d) above shall be conclusive and binding absent manifest error, and such Revolving
Lender shall be deemed to be a Defaulting Lender (subject to Section 2.20) upon delivery of
written notice of such determination to the Borrower, each Issuing Bank, the Swingline Lender
and each other Lender.
“Designated Non-Cash Consideration” means the fair market value of non-cash
consideration received by the Borrower or a Restricted Subsidiary in connection with a
disposition pursuant to Section 6.05 that is designated as Designated Non-Cash Consideration
pursuant to a certificate of an executive officer, setting forth the basis of such valuation (which
amount will be reduced by the fair market value of the portion of the non-cash consideration
converted to cash within 180 days following the consummation of such disposition).
“Designated Subsidiary” means each wholly owned Restricted Subsidiary other
than (a) a Restricted Subsidiary that is (i) a Foreign Subsidiary, (ii) a Foreign-Subsidiary Holding
Company or (iii) a Subsidiary of a Foreign Subsidiary or a Foreign-Subsidiary Holding
Company, (b) a Subsidiary that is not a Material Subsidiary, (c) a Restricted Subsidiary that is a
captive insurance subsidiary, a not-for-profit subsidiary or a special purpose entity or (d) a
Restricted Subsidiary that is not permitted by law, regulation or contract to provide the Guarantee
required by the Collateral and Guarantee Requirement (so long as any such contractual restriction
is not incurred in contemplation of such Person becoming a Subsidiary), or would require
governmental (including regulatory) consent, approval, license or authorization to provide such
Guarantee, unless such consent, approval, license or authorization has been received, or for which
the provision of such Guarantee would result in a material adverse tax consequence to the
Borrower and the Restricted Subsidiaries, taken as a whole (as reasonably determined in good
faith by the Borrower).
“Disqualified Equity Interest” means any Equity Interest that (a) matures or is
mandatorily redeemable (other than solely for Qualified Equity Interests) or subject to mandatory
repurchase or redemption or repurchase at the option of the holders thereof, in each case in whole
or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation on
a fixed date or otherwise, prior to the date that is 91 days after the Latest Maturity Date
(determined as of the date of issuance thereof or, in the case of any such Equity Interests
outstanding on the date hereof, as of the date hereof), other than (i) upon payment in full of the
Loan Document Obligations, reduction of the LC Exposure to zero and termination of the
Commitments or (ii) upon a “change in control” or asset sale or casualty or condemnation event;
provided that any payment required pursuant to this clause (ii) shall be subject to the prior
repayment in full of the Loans or (b) is convertible or exchangeable, automatically or at the
option of any holder thereof, into (i) any Indebtedness (other than any Indebtedness described in
clause (j) of the definition thereof) or (ii) any Equity Interests or other assets other than Qualified
Equity Interests, in each case at any time prior to the date that is 91 days after the Latest Maturity
Date (determined as of the date of issuance thereof or, in the case of any such Equity Interests
outstanding on the date hereof, as of the date hereof); provided that (x) an Equity Interest in any
Person that is issued to any employee or to any plan for the benefit of employees or by any such
plan to such employees shall not constitute a Disqualified Equity Interest solely because it may be
required to be repurchased by such Person or any of its subsidiaries in order to satisfy applicable
statutory or regulatory obligations or as a result of such employee’s termination, death or
disability and (y) any Equity Interest that would constitute a Disqualified Equity Interest solely as
a result of a redemption feature that is conditioned upon, or subject to, compliance with the Loan
Documents shall not constitute a Disqualified Equity Interest.
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“Distribution Agreement” means the Distribution Agreement between Exelis and
Holdings, dated as of September 25, 2014.
“Dollar Equivalent” means, at any time, (a) with respect to any amount
denominated in dollars, such amount and (b) with respect to any amount denominated in any
Permitted Foreign Currency, the equivalent amount thereof in dollars at such time as determined
in accordance with Section 1.06(a) using the Exchange Rate with respect to such Permitted
Foreign Currency at the time in effect under the provisions of such Section (except as otherwise
expressly provided in Section 2.05(e)).
“dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.
“EEA Financial Institution” means (a) any institution established in any EEA
Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any
entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition or (c) any institution established in an EEA Member Country which is
a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to
consolidated supervision with its parent.
“EEA Member Country” means (a) any member state of the European Union, (b)
Iceland, (c) Liechtenstein and (d) Norway.
“EEA Resolution Authority” means any public administrative authority or any
Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund and (d) any other Person, other than, in each case, a natural person, a Defaulting
Lender, Holdings, the Borrower, any Subsidiary or any other Affiliate of Holdings.
“Employee Matters Agreement” means the Employee Matters Agreement
between Exelis and Holdings, dated as of September 25, 2014.
“Environmental Law” means any treaty, law (including common law), rule,
regulation, code, ordinance, order, decree, judgment, injunction, notice or binding agreement
issued, promulgated or entered into by or with any Governmental Authority, relating in any way
to (a) the protection of the environment, (b) the preservation or reclamation of natural resources,
(c) the generation, management, Release or threatened Release of any Hazardous Material or (d)
health and safety matters, to the extent relating to the environment or the management of or
exposure to Hazardous Materials.
“Environmental Liability” means any liability, obligation, loss, claim, action,
order or cost, contingent or otherwise (including any liability for damages, costs of medical
monitoring, costs of environmental remediation or restoration, administrative oversight costs,
consultants’ fees, fines, penalties and indemnities), directly or indirectly resulting from or based
upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval
required thereunder, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any legally binding contract or agreement
16
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or other legally binding consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a trust or other equity
ownership interests (whether voting or non-voting) in, or interests in the income or profits of, a
Person, and any warrants, options or other rights entitling the holder thereof to purchase or
acquire any of the foregoing (other than, prior to the date of such conversion, Indebtedness that is
convertible into Equity Interests).
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section 414(b) or 414(c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043(c)
of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived), (b) any failure by any Plan to satisfy the minimum
funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA)
applicable to such Plan, whether or not waived, (c) the filing pursuant to Section 412(c) of the
Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan, (d) a determination that any Plan is, or is expected to be, in “at risk”
status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4)(A) of the Code), (e) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan, (f) the receipt by the Borrower or any of its
ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (g) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan or (h) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of
Title IV of ERISA, or in endangered or critical status, within the meaning of Section 305 of
ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to
time.
“EURIBO Rate” means, with respect to any EURIBOR Borrowing for any
Interest Period, a rate per annum equal to the Euro interbank offered rate as administered by the
Banking Federation of the European Union (or any other Person that takes over the administration
of such rate) for a deposit in Euro (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period as displayed on the Reuters screen page that displays such
rate (currently page EURIBOR 01) or, in the event such rate does not appear on a page of the
Reuters screen, on any successor or substitute page on such screen that displays such rates or on
the appropriate page of such other information service that publishes such rate as shall be selected
by the Administrative Agent from time to time in its reasonable discretion (such applicable rate
being called the “EURIBO Screen Rate”), at approximately 11:00 a.m., Brussels time, on the
17
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Quotation Day for such Interest Period. If no EURIBO Screen Rate shall be available for a
particular Interest Period but EURIBO Screen Rates shall be available for maturities both longer
and shorter than such Interest Period, then the EURIBO Rate for such Interest Period shall be the
Interpolated Screen Rate. Notwithstanding the foregoing, if the EURIBO Rate, determined as
provided above, would otherwise be less than zero, then the EURIBO Rate shall be deemed to be
zero for all purposes.
“EURIBOR”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted EURIBO Rate.
“EURIBO Screen Rate” has the meaning assigned to such term in the definition
of the “EURIBO Rate”.
“Euro” or “€” means the single currency of the European Union as constituted by
the Treaty on European Union and as referred to in the EMU Legislation.
“Eurocurrency”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Excess Cash Flow” means, for any fiscal year of the Borrower, the sum (without
duplication) of:
(a) the Consolidated Net Income (or loss) of Holdings, the Borrower and the
Restricted Subsidiaries for such fiscal year, adjusted to exclude (i) net income (or loss) of any
consolidated Restricted Subsidiary that is not wholly owned by Holdings to the extent such
income or loss is attributable to the noncontrolling interest in such consolidated Restricted
Subsidiary and (ii) any gains or losses attributable to Prepayment Events; plus
(b) depreciation, amortization and other non-cash charges or losses deducted in
determining such consolidated net income (or loss) for such fiscal year; plus
(c) the sum of (i) the amount, if any, by which Net Working Capital decreased
during such fiscal year (except as a result of the reclassification of items from short-term to long-
term or vice-versa), (ii) the net amount, if any, by which the consolidated deferred revenues and
other consolidated accrued long-term liability accounts of the Borrower and the Restricted
Subsidiaries increased during such fiscal year and (iii) the net amount, if any, by which the
consolidated accrued long-term asset accounts of the Borrower and the Restricted Subsidiaries
decreased during such fiscal year; minus
(d) the sum of (i) any non-cash gains included in determining such consolidated
net income (or loss) for such fiscal year, (ii) the amount, if any, by which Net Working Capital
increased during such fiscal year (except as a result of the reclassification of items from long-
term to short-term or vice-versa), (iii) the net amount, if any, by which the consolidated deferred
revenues and other consolidated accrued long-term liability accounts of the Borrower and the
Restricted Subsidiaries decreased during such fiscal year and (iv) the net amount, if any, by
which the consolidated accrued long-term asset accounts of the Borrower and the Restricted
Subsidiaries increased during such fiscal year; minus
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(e) the sum (without duplication) of (i) Capital Expenditures and, to the extent
not included as Capital Expenditures, expenditures made by Holdings, the Borrower and the
Restricted Subsidiaries in respect of the acquisition of intellectual property, in each case made in
cash for such fiscal year (except to the extent attributable to the incurrence of Capital Lease
Obligations or otherwise financed from Excluded Sources) and (ii) cash consideration paid during
such fiscal year to make acquisitions or other investments (other than Permitted Investments)
(except to the extent financed from Excluded Sources); minus
(f) the aggregate principal amount of Long-Term Indebtedness repaid or prepaid
by the Borrower and the Restricted Subsidiaries during such fiscal year, excluding
(i) Indebtedness in respect of Revolving Loans and Letters of Credit or other revolving credit
facilities (unless there is a corresponding reduction in the Aggregate Revolving Commitment or
the commitments in respect of such other revolving credit facilities, as applicable), (ii) Term
Loans prepaid pursuant to Section 2.11(a) or (c) and Revolving Loans prepaid pursuant to Section
2.11(a) and (iii) repayments or prepayments of Long-Term Indebtedness financed from Excluded
Sources; minus
(g) the aggregate amount (not to exceed $1,000,000 in any fiscal year of the
Borrower) of Restricted Payments made by Holdings in cash during such fiscal year pursuant to
Section 6.08(a) for the purpose of repurchasing Equity Interests of Holdings held by employees
or former employees of Holdings, the Borrower or any Subsidiary, except to the extent that such
Restricted Payments (i) are made to fund expenditures that reduce consolidated net income (or
loss) of Holdings, the Borrower and the Restricted Subsidiaries or (ii) are financed from Excluded
Sources.
“Exchange Act” means the United States Securities Exchange Act of 1934.
“Exchange Rate” means, on any day, with respect to the applicable Permitted
Foreign Currency, the rate of exchange for the purchase of dollars with such Permitted Foreign
Currency in the London foreign exchange market at or about 11:00 a.m., London time (or New
York time, as applicable), on such day as displayed by ICE Data Services as the “ask price”, or as
displayed on such other information service which publishes that rate of exchange from time to
time in place of ICE Data Services (or if such service ceases to be available, the equivalent of
such amount in dollars as determined by the Administrative Agent using any method of
determination it deems appropriate in its sole discretion).
“Excluded Sources” means (a) proceeds of any incurrence or issuance of Long-
Term Indebtedness or Capital Lease Obligations and (b) proceeds of any issuance or sale of
Equity Interests in Holdings, the Borrower or any Restricted Subsidiary (other than issuances or
sales of Equity Interests to Holdings, the Borrower or any Restricted Subsidiary) or any capital
contributions to Holdings, the Borrower or any Restricted Subsidiary (other than any capital
contributions made by Holdings, the Borrower or any Restricted Subsidiary).
“Excluded Swap Guarantor” means Holdings or any Subsidiary Loan Party all or
a portion of whose Guarantee of, or grant of a security interest to secure, any Swap Obligation (or
any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule,
regulation or order of the Commodity Futures Trading Commission (or the application or official
interpretation of any thereof).
“Excluded Swap Obligations” means, with respect to Holdings or any Subsidiary
Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of
19
[[3680601]]
Holdings or such Subsidiary Loan Party of, or the grant by Holdings or such Subsidiary Loan
Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or
becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any
thereof). If a Swap Obligation arises under a master agreement governing more than one swap,
such exclusion shall apply only to the portion of such Swap Obligation that is attributable to
swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect
to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes
imposed on or measured by net income (however denominated), franchise Taxes and branch
profits Taxes, in each case (i) imposed as a result of such Recipient being organized under the
laws of, or having its principal office or, in the case of any Lender, its applicable lending office
located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are
Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on
amounts payable to or for the account of such Lender with respect to an applicable interest in a
Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires
such interest in the Loan or Commitment (other than pursuant to an assignment request by the
Borrower under Section 2.19(b) or 9.02(c)) or (ii) such Lender changes its lending office, except
in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender acquired the applicable
interest in a Loan or Commitment or to such Lender immediately before it changed its lending
office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f) and (d)
any U.S. Federal withholding Taxes imposed under FATCA.
“Exelis” means Exelis Inc., an Indiana corporation.
“Existing Maturity Date” has the meaning assigned to such term in
Section 2.22(a).
“Existing Revolving Borrowings” has the meaning assigned to such term in
Section 2.21(d).
“Extension Effective Date” has the meaning assigned to such term in Section
2.22(a).
“FATCA” means Sections 1471 through 1474 of the Code, as of the Restatement
Effective Date (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), any current or future regulations or official
interpretations thereof and any agreements entered into pursuant to Section 1471(b) of the Code
and any intergovernmental agreements entered into in connection with the implementation of
such Section of the Code (or any such amended or successor version thereof).
“Federal Funds Effective Rate” means, for any day, the rate calculated by the
NYFRB based on such day’s federal funds transactions by depositary institutions, as determined
in such manner as the NYFRB shall set forth on its public website from time to time, and
published on the next succeeding Business Day by the NYFRB as the federal funds effective rate;
provided, however, that if such rate shall be less than zero, then such rate shall be deemed to be
zero for all purposes of this Agreement.
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“Financial Officer” means, with respect to any Person, the chief financial officer,
principal accounting officer, treasurer or controller of such Person, or any other officer of such
Person performing the duties that are customarily performed by a chief financial officer, principal
accounting officer, treasurer or controller.
“Flood Insurance Laws” means, collectively, (a) the National Flood Insurance
Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968
and the Flood Disaster Protection Act of 1973), (b) the Flood Insurance Reform Act of 2004 and
(c) the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Flood Insurance Reform Act of 2014, in each case as now or hereafter in
effect or any successor statute thereto.
“Foreign Lender” means (a) if the Borrower is a U.S. Person, then a Lender, with
respect to such Borrower, that is not a U.S. Person and (b) if the Borrower is not a U.S. Person,
then a Lender, with respect to such Borrower, that is resident or organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the District of
Columbia.
“Foreign Subsidiary Disposition” has the meaning assigned to such term in
Section 2.11(g).
“Foreign-Subsidiary Holding Company” means any Restricted Subsidiary all of
whose assets consist of (a) Equity Interests and/or Indebtedness of one or more Foreign
Subsidiaries and (b) not more than an immaterial amount of cash.
“Form 10” means the registration statement on Form 10, originally filed by
Holdings with the SEC on March 10, 2014, as amended on April 15, 2014, May 19, 2014, August
14, 2014, and August 26, 2014, and (except as such term is used in Section 4.02(j)) as further
amended.
“GAAP” means generally accepted accounting principles in the United States of
America.
“Global Intercompany Note” means the Global Intercompany Note dated as of
September 14, 2017 (as amended, supplemented or otherwise modified from time to time)
pursuant to which intercompany obligations and advances owed by any Loan Party are
subordinated to the Obligations.
“Governmental Authority” means the government of the United States of
America, any other nation or any political subdivision thereof, whether State or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supranational bodies exercising such powers or
functions, such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the guarantor, direct
21
[[3680601]]
or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or other obligation; provided that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business. The amount, as of any date of determination, of any Guarantee shall be the principal
amount outstanding on such date of the Indebtedness or other obligation guaranteed thereby (or,
in the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor
or (ii) any Guarantee of an obligation that does not have a principal amount, the maximum
monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the
case of clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith
by a Financial Officer of the Borrower)). The term “Guarantee” used as a verb has a
corresponding meaning.
“Hazardous Materials” means all (a) explosive, radioactive, hazardous or toxic
substances, materials, wastes or other pollutants, (b) petroleum or petroleum by-products or
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
chlorofluorocarbons and other ozone-depleting substances or mold and (c) other materials which
are regulated, or can result in liability, pursuant to any Environmental Law.
“Hedging Agreement” means any agreement with respect to any swap, forward,
future or derivative transaction, or any option or similar agreement, involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of the foregoing transactions; provided that
no phantom stock or similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of Holdings, the Borrower or any
Subsidiary shall be a Hedging Agreement.
“Holdings” means Vectrus, Inc., an Indiana corporation.
“Incremental Extensions of Credit” has the meaning assigned to such term in
Section 2.21(a).
“Incremental Facility Amendment” has the meaning assigned to such term in
Section 2.21(c).
“Incremental Term Loans” has the meaning assigned to such term in
Section 2.21(a).
“Indebtedness” of any Person means, without duplication, (a) all obligations of
such Person for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property acquired by such Person, (d) all obligations
of such Person in respect of the deferred purchase price of property or services (excluding (i)
trade accounts payable and other accrued or cash management obligations, in each case incurred
in the ordinary course of business and (ii) any earnout obligation until such obligation ceases to
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be contingent), (e) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed by such Person, (f) all Guarantees by such Person of Indebtedness of others, (g) all
Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances and (j) all Disqualified
Equity Interests in such Person, valued, as of the date of determination, at the greater of (i) the
maximum aggregate amount that would be payable upon maturity, redemption, repayment or
repurchase thereof (or of Disqualified Equity Interests or Indebtedness into which such
Disqualified Equity Interests are convertible or exchangeable) and (ii) the maximum liquidation
preference of such Disqualified Equity Interests. Notwithstanding the foregoing, the term
“Indebtedness” shall not include post-closing purchase price adjustments or earnouts except to the
extent that the amount payable pursuant to such purchase price adjustment or earnout ceases to be
contingent. The amount of Indebtedness of any Person for purposes of clause (e) above shall
(unless such Indebtedness has been assumed by such Person or such Person has otherwise
become liable for the payment thereof) be deemed to be equal to the lesser of (i) the aggregate
unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered
thereby as determined by such Person in good faith.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by or on account of any obligation of any Loan Party under
this Agreement or any other Loan Document and (b) to the extent not otherwise described in
clause (a) of this definition, Other Taxes.
“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
“Intellectual Property License Agreement” means, collectively, the Transitional
Trademark License Agreement and the Technology License Agreement, in each case between
Exelis or one of its Affiliates and Holdings, dated as of September 25, 2014.
“Interest Election Request” means a request by the Borrower to convert or
continue a Revolving Borrowing or Term Borrowing in accordance with Section 2.07, which
shall be, in the case of a written Interest Election Request, in a form approved by the
Administrative Agent and otherwise consistent with the requirements of Section 2.07.
“Interest Payment Date” means (a) with respect to any ABR Loan (including a
Swingline Loan), the last day of each March, June, September and December and (b) with respect
to any Eurocurrency Loan or EURIBOR Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing or a
EURIBOR Borrowing with an Interest Period of more than three months’ duration, each day prior
to the last day of such Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period.
“Interest Period” means, with respect to any Eurocurrency Borrowing or
EURIBOR Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months
thereafter (or twelve months thereafter if, at the time of the relevant Borrowing, all Lenders
participating therein agree to make an interest period of such duration available), as the Borrower
may elect; provided that (a) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless such next
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succeeding Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any Interest Period that commences
on the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of
a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be
the effective date of the most recent conversion or continuation of such Borrowing.
“Interpolated Screen Rate” means (a) with respect to any Eurocurrency
Borrowing for any Interest Period (or with respect to the calculation of the Alternate Base Rate as
provided in clause (c) of the definition thereof for an Interest Period of one month), a rate per
annum which results from interpolating on a linear basis between (i) the applicable LIBO Screen
Rate for the longest maturity for which a LIBO Screen Rate is available that is shorter than such
Interest Period and (ii) the applicable LIBO Screen Rate for the shortest maturity for which a
LIBO Screen Rate is available that is longer than such Interest Period, in each case at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest Period (or, with
respect to the calculation of the Alternate Base Rate as provided in clause (c) of the definition
thereof, at approximately 11:00 a.m., London time, on the date of determination thereof), and (b)
with respect to any EURIBOR Borrowing for any Interest Period, a rate per annum which results
from interpolating on a linear basis between (i) the applicable EURIBO Screen Rate for the
longest maturity for which a EURIBO Screen Rate is available that is shorter than such Interest
Period and (ii) the applicable EURIBO Screen Rate for the shortest maturity for which a
EURIBO Screen Rate is available that is longer than such Interest Period, in each case at
approximately 11:00 a.m., Brussels time, on the Quotation Day for such Interest Period.
“Investment Company Act” means the U.S. Investment Company Act of 1940.
“IRS” means the United States Internal Revenue Service.
“Issuing Banks” means, collectively, (a) JPMorgan, (b) Citibank, (c) SunTrust,
(d) U.S. Bank and (e) each other Revolving Lender that shall have become an Issuing Bank
hereunder as provided in Section 2.05(j) (in each case, other than any such Person that shall have
ceased to be an Issuing Bank as provided in Section 2.05(k)), each in its capacity as an issuer of
Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“JPMorgan” means JPMorgan Chase Bank, N.A.
“Latest Maturity Date” means, at any time, the latest of the Maturity Dates in
respect of the Classes of Loans and Commitments that are outstanding at such time.
“LC Disbursements” means a payment made by an Issuing Bank pursuant to a
Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the Dollar Equivalent of the
aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the Dollar
Equivalent of the aggregate amount of all LC Disbursements that have not yet been reimbursed
by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be such Lender’s Applicable Percentage of the aggregate LC Exposure at such time.
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“LC Sublimit” means $25,000,000.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental
Facility Amendment or a Refinancing Facility Agreement, other than any such Person that shall
have ceased to be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lenders.
“Letters of Credit” means any letter of credit issued pursuant to this Agreement,
other than any such letter of credit that shall have ceased to be a “Letter of Credit” outstanding
hereunder pursuant to Section 9.05.
“LIBO Rate” means, with respect to any Eurocurrency Borrowing in any
currency for any Interest Period, a rate per annum equal to the London interbank offered rate as
administered by ICE Benchmark Administration (or any other Person that takes over the
administration of such rate for the relevant currency) for a deposit in such currency (for delivery
on the first day of such Interest Period) with a term equivalent to such Interest Period as displayed
on the Reuters screen page that displays such rate (currently page LIBOR01) or, in the event such
rate does not appear on a page of the Reuters screen, on any successor or substitute page on such
screen that displays such rate or on the appropriate page of such other information service that
publishes such rate as shall be selected by the Administrative Agent from time to time in its
reasonable discretion (such applicable rate being called the “LIBO Screen Rate”), at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest Period. If no
LIBO Screen Rate shall be available for a particular Interest Period but LIBO Screen Rates shall
be available for maturities both longer and shorter than such Interest Period, then the LIBO Rate
for such Interest Period shall be the Interpolated Screen Rate. Notwithstanding the foregoing, if
the LIBO Rate, determined as provided above, would otherwise be less than zero, then the LIBO
Rate shall be deemed to be zero for all purposes.
“LIBO Screen Rate” has the meaning assigned to such term in the definition of
the “LIBO Rate”.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, charge, security interest or other encumbrance in, on or of such asset or
(b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any
of the foregoing) relating to such asset.
“Liquidity” means, at any time, the sum of (a) the aggregate principal amount of
Revolving Loans (expressed in dollars) that are permitted to be borrowed hereunder at such time
in respect of the unused Revolving Commitments at such time and (b) the aggregate amount of
Unrestricted Cash at such time.
“Loan Document Obligations” means (a) the due and punctual payment by the
Borrower of (i) the principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required
to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as
due, including payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other monetary obligations of the Borrower
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under this Agreement and each of the other Loan Documents, including obligations to pay fees,
expense reimbursement obligations (including with respect to attorneys’ fees) and
indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding) and (b) the due and punctual payment of all the obligations of each other Loan Party
under or pursuant to each of the Loan Documents (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding).
“Loan Documents” means this Agreement, the Amendment and Restatement
Agreement, any Incremental Facility Amendment, any Refinancing Facility Agreement, the
Collateral Agreement, the other Security Documents, the Global Intercompany Note, any
agreement designating an additional Issuing Bank as contemplated by Section 2.05(j), each
agreement designating an additional Swingline Lender as contemplated by the definition thereof
and, except for purposes of Section 9.02, any promissory notes delivered pursuant to Section
2.09(c) (and, in each case, any amendment, restatement, waiver, supplement or other modification
to any of the foregoing).
“Loan Parties” means, collectively, Holdings, the Borrower and the Subsidiary
Loan Parties.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement or the Amendment and Restatement Agreement, including pursuant to any
Incremental Facility Amendment or any Refinancing Facility Agreement.
“Local Time” means (a) with respect to any Loan or Borrowing denominated in
dollars or any Letter of Credit denominated in dollars, New York City time, and (b) with respect
to any Loan or Borrowing denominated in a Permitted Foreign Currency or any Letter of Credit
denominated in a Permitted Foreign Currency, London time.
“Long-Term Indebtedness” means any Indebtedness (excluding Indebtedness
permitted by Section 6.01(c)) that, in accordance with GAAP, constitutes (or, when incurred,
constituted) a long-term liability.
“Majority in Interest”, when used in reference to Lenders of any Class, means, at
any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Exposures and
unused Revolving Commitments representing more than 50% of the sum of the Aggregate
Revolving Exposure and the unused Aggregate Revolving Commitment at such time and (b) in
the case of the Term Lenders of any Class, Lenders holding outstanding Term Loans of such
Class representing more than 50% of the aggregate principal amount of all Term Loans of such
Class outstanding at such time.
“Material Adverse Effect” means a material adverse effect on (a) the business,
assets, liabilities, operations or financial condition of Holdings, the Borrower and the Restricted
Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform
their material obligations to the Lenders or the Administrative Agent under this Agreement or any
other Loan Document or (c) the material rights of, or remedies available to, the Administrative
Agent or the Lenders under this Agreement or any other Loan Document.
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“Material Indebtedness” means Indebtedness (other than the Loans, the Letters of
Credit and the Guarantees under the Loan Documents), or obligations in respect of one or more
Hedging Agreements, of any one or more of Holdings, the Borrower and the Restricted
Subsidiaries in an aggregate principal amount exceeding $5,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of Holdings, the
Borrower or any Restricted Subsidiary in respect of any Hedging Agreement at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that Holdings, the
Borrower or such Restricted Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
“Material Subsidiary” means each Restricted Subsidiary (a) the consolidated total
assets of which equal 5.0% or more of the consolidated total assets of Holdings, the Borrower and
the Restricted Subsidiaries or (b) the consolidated revenues of which equal 5.0% or more of the
consolidated revenues of Holdings, the Borrower and the Restricted Subsidiaries, in each case as
of the end of or for the most recent period of four consecutive fiscal quarters of Holdings for
which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to
the first delivery of any such financial statements, as of the end of or for the period of four
consecutive fiscal quarters of Holdings most recently ended prior to the date of this Agreement);
provided that if, at the end of or for any such most recent period of four consecutive fiscal
quarters, the combined consolidated total assets or combined consolidated revenues of all
Restricted Subsidiaries that under clauses (a) and (b) above would not constitute Material
Subsidiaries shall have exceeded 10.0% of the consolidated total assets of Holdings, the Borrower
and the Restricted Subsidiaries or 10.0% of the consolidated revenues of Holdings, the Borrower
and the Restricted Subsidiaries, respectively, then one or more of such excluded Restricted
Subsidiaries shall for all purposes of this Agreement be designated by the Borrower to be
Material Subsidiaries, until such excess shall have been eliminated.
“Maturity Date” means the Revolving Maturity Date, the Tranche A Term
Maturity Date or the maturity date with respect to any Class of Incremental Term Loans, as the
context requires.
“Maturity Date Extension Request” means a request by the Borrower, in the form
of Exhibit H hereto or such other form as shall be approved by the Administrative Agent, for the
extension of the applicable Maturity Date pursuant to Section 2.22.
“Maximum Rate” has the meaning assigned to such term in Section 9.13.
“MNPI” means material information concerning Holdings, the Borrower, any
Subsidiary or any Affiliate of any of the foregoing or their securities that has not been
disseminated in a manner making it available to investors generally, within the meaning of
Regulation FD under the Securities Act and the Exchange Act. For purposes of this definition,
“material information” means information concerning Holdings, the Borrower, the Subsidiaries or
any Affiliate of any of the foregoing or any of their securities that could reasonably be expected
to be material for purposes of the United States Federal and State securities laws and, where
applicable, foreign securities laws.
“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc., and any successor to its
rating agency business.
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“Mortgage” means a mortgage, deed of trust or other security document granting
a Lien on any Mortgaged Property to secure the Obligations. Each Mortgage shall be reasonably
satisfactory in form and substance to the Administrative Agent.
“Mortgaged Property” means, initially, each parcel of real property and the
improvements thereto owned by a Loan Party and identified on Schedule 1.01, and includes each
other parcel of real property and the improvements thereto owned by a Loan Party with respect to
which a Mortgage is granted pursuant to Section 5.11 or 5.12.
“Multiemployer Plan” means a “multiemployer plan”, as defined in
Section 4001(a)(3) of ERISA.
“Net Proceeds” means, with respect to any event, (a) the cash proceeds received
in respect of such event, including (i) any cash received in respect of any non-cash proceeds
(including any cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment or earnout, but excluding any interest
payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds and
(iii) in the case of a condemnation or similar event, condemnation awards and similar payments,
minus (b) the sum, without duplication, of (i) all fees and out-of-pocket expenses paid in
connection with such event by Holdings, the Borrower and the Restricted Subsidiaries, (ii) in the
case of a sale, transfer, lease or other disposition of an asset (including pursuant to a sale and
leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all
payments that are permitted hereunder and are made by Holdings, the Borrower and the
Restricted Subsidiaries as a result of such event to repay Indebtedness (other than the Loans)
secured by such asset or otherwise subject to mandatory prepayment as a result of such event and
(iii) the amount of all taxes paid (or reasonably estimated to be payable) by Holdings, the
Borrower and the Restricted Subsidiaries, and the amount of any reserves established by
Holdings, the Borrower and the Restricted Subsidiaries in accordance with GAAP to fund
purchase price adjustment, indemnification and similar contingent liabilities (other than any
earnout obligations) reasonably estimated to be payable, in each case during the year that such
event occurred or the next succeeding year and that are directly attributable to the occurrence of
such event (as determined reasonably and in good faith by a Financial Officer of Holdings). For
purposes of this definition, in the event any contingent liability reserve established with respect to
any event as described in clause (b)(iii) above shall be reduced, the amount of such reduction
shall, except to the extent such reduction is made as a result of a payment having been made in
respect of the contingent liabilities with respect to which such reserve has been established, be
deemed to be receipt, on the date of such reduction, of cash proceeds in respect of such event.
“Net Working Capital” means, at any date, (a) the consolidated current assets of
the Borrower and the Restricted Subsidiaries as of such date (excluding cash and Permitted
Investments) minus (b) the consolidated current liabilities of the Borrower and the Restricted
Subsidiaries as of such date (excluding current liabilities in respect of Indebtedness). Net
Working Capital at any date may be a positive or negative number. Net Working Capital
increases when it becomes more positive or less negative and decreases when it becomes less
positive or more negative.
“Non-Consenting Lender” has the meaning assigned to such term in Section
9.02(c).
“Non-Defaulting Revolving Lender” means, at any time, a Revolving Lender that
is not a Defaulting Lender at such time.
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“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective
Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or, for
any day that is not a Business Day, for the immediately preceding Business Day); provided,
however, that, if none of such rates are published for any day that is a Business Day, the term
“NYFRB Rate” means the rate for a Federal funds transaction quoted at 11:00 a.m., New York
City time, on such day to the Administrative Agent from a Federal funds broker of recognized
standing selected by it; provided further, however, that if any of the aforesaid rates shall be less
than zero, then such rate shall be deemed to be zero for all purposes of this Agreement.
“Obligations” means, collectively, (a) all the Loan Document Obligations, (b) all
the Secured Cash Management Obligations and (c) all the Secured Hedging Obligations.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of
the Treasury.
“Original Credit Agreement” means the Credit Agreement dated as of September
17, 2014 (as amended, supplemented or otherwise modified prior to the Restatement Effective
Date), among Holdings, the Borrower, the lenders and issuing banks party thereto and the
Administrative Agent.
“Other Connection Tax” means, with respect to any Recipient, a Tax imposed as
a result of a present or former connection between such Recipient and the jurisdiction imposing
such Tax (other than connections arising from such Recipient having executed, delivered, become
a party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced this Agreement
or any other Loan Document, or sold or assigned an interest in this Agreement or any other Loan
Document).
“Other Taxes” means all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made under, from the
execution, delivery, performance, enforcement or registration of, from the receipt or perfection of
a security interest under, or otherwise with respect to, this Agreement or any other Loan
Document, except any such Taxes that are Other Connection Taxes imposed with respect to an
assignment (other than an assignment made pursuant to Section 2.19(b)).
“Overnight Bank Funding Rate” means, for any date, the rate comprised of both
overnight Federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices
of depositary institutions, as such composite rate shall be determined by the NYFRB as set forth
on its public website from time to time, and published on the next succeeding Business Day by
the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall
commence to publish such composite rate).
“Participant” has the meaning assigned to such term in Section 9.04(c).
“Participant Register” has the meaning assigned to such term in Section 9.04(c).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
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“Perfection Certificate” means the Perfection Certificate dated as of September
17, 2014, delivered by the Borrower under the Original Credit Agreement.
“Permitted Encumbrances” means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in
good faith by appropriate proceedings if adequate reserves with respect thereto are maintained on
the books of the applicable Person in accordance with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
landlords’ and other like Liens imposed by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than 30 days or are being contested in good
faith by appropriate proceedings if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(c) pledges and deposits made (i) in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance and other social security laws
and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the
account of Holdings or any subsidiary of Holdings in the ordinary course of business supporting
obligations of the type set forth in clause (i) above;
(d) pledges and deposits made (i) to secure the performance of bids, trade
contracts (other than for payment of Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business and (ii) in respect of letters of credit, bank
guarantees or similar instruments issued for the account of Holdings or any subsidiary of
Holdings in the ordinary course of business supporting obligations of the type set forth in clause
(i) above;
(e) judgment liens in respect of judgments that do not constitute an Event of
Default under clause (k) of Section 7.01;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially interfere with the ordinary conduct of business of the
Borrower or any Subsidiary;
(g) Liens arising from Permitted Investments described in clause (d) of the
definition of the term “Permitted Investments”;
(h) banker’s liens, rights of setoff or similar rights and remedies as to deposit
accounts or other funds maintained with depository institutions and securities accounts and other
financial assets maintained with a securities intermediary; provided that such deposit accounts or
funds and securities accounts or other financial assets are not established or deposited for the
purpose of providing collateral for any Indebtedness;
(i) Liens arising by virtue of Uniform Commercial Code financing statement
filings (or similar filings under applicable law) regarding operating leases entered into by
Holdings, the Borrower and the Restricted Subsidiaries;
(j) Liens of a collecting bank arising in the ordinary course of business under
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Section 4-208 (or the applicable corresponding section) of the Uniform Commercial Code in
effect in the relevant jurisdiction covering only the items being collected upon;
(k) Liens representing any interest or title of a licensor, lessor or sublicensor or
sublessor, or a licensee, lessee or sublicensee or sublessee, in the property or rights subject to any
lease, license or sublicense or concession agreement in the ordinary course of business to the
extent that they do not materially interfere with the business of Holdings, the Borrower or any
Restricted Subsidiary;
(l) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(m) Liens that are contractual rights of set-off;
(n) Liens (i) of a collection bank arising under Section 4-208 of the New York
Uniform Commercial Code (or the corresponding section of the Uniform Commercial Code in
any other jurisdiction) on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary course of business
and (iii) in favor of a banking institution arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general parameters customary in the
banking industry;
(o) Liens encumbering reasonable customary initial deposits and margin deposits
and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred
in the ordinary course of business and not for speculative purposes; and
(p) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of Holdings, the Borrower or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of Holdings, the Borrower and the Restricted Subsidiaries or (iii) relating to
purchase orders and other agreements entered into with customers of Holdings, the Borrower or
any Restricted Subsidiary in the ordinary course of business;
provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness, other than Liens referred to in clauses (c) and (d) above securing letters of credit,
bank guarantees or similar instruments.
“Permitted Foreign Currency” means, with respect to any Revolving Loan or
Letter of Credit, Euros, Pounds Sterling and any other foreign currency reasonably requested by
the Borrower from time to time and in which each Revolving Lender (in the case of any
Revolving Loans to be denominated in such other foreign currency) and each applicable Issuing
Bank (in the case of any Letters of Credit to be denominated in such other foreign currency) has
reasonably agreed, in accordance with its policies and procedures in effect at such time, to lend
Revolving Loans or issue Letters of Credit, as applicable.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of America), in
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each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper and variable and fixed rate notes maturing
within 12 months from the date of acquisition thereof and having, at such date of acquisition, a
rating of at least A-2 by S&P or P-2 by Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and demand or
time deposits, in each case maturing within 12 months from the date of acquisition thereof, issued
or guaranteed by or placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30
days for securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(e) “money market funds” that (i) comply with the criteria set forth in Rule 2a-7
of the Investment Company Act, (ii) are rated AAA- by S&P and Aaa3 by ▇▇▇▇▇’▇ and (iii) have
portfolio assets of at least $5,000,000,000; and
(f) in the case of any Foreign Subsidiary, other short-term investments that are
analogous to the foregoing, are of comparable credit quality and are customarily used by
companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.
“Permitted Pari Passu Refinancing Debt” shall mean any secured Indebtedness
incurred by the Borrower in the form of one or more series of senior secured notes; provided that
(a) such Indebtedness is secured by the Collateral on a pari passu basis to the Obligations and is
not secured by any property or assets of Holdings, the Borrower or any Restricted Subsidiary
other than the Collateral, (b) such Indebtedness constitutes Refinancing Term Loan Indebtedness
in respect of Term Loans (including portions of Classes of Term Loans), (c) the security
agreements relating to such Indebtedness are not materially more favorable (when taken as a
whole) to the holders providing such Indebtedness than the existing Security Documents are to
the Lenders, (d) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the
Loan Parties and (e) such Indebtedness is subject to customary intercreditor arrangements
reasonably satisfactory to the Administrative Agent.
“Permitted Second Priority Refinancing Debt” shall mean any secured
Indebtedness incurred by the Borrower in the form of one or more series of senior secured notes
or loans; provided that (a) such Indebtedness is secured by the Collateral on a second lien,
subordinated basis to the Obligations and is not secured by any property or assets of Holdings, the
Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness constitutes
Refinancing Term Loan Indebtedness in respect of Term Loans (including portions of Classes of
Term Loans), (c) the security agreements relating to such Indebtedness are not materially more
favorable (when taken as a whole) to the lenders or holders providing such Indebtedness than the
existing Security Documents are to the Lenders, (d) such Indebtedness is not guaranteed by any
Restricted Subsidiaries other than the Loan Parties and (e) such Indebtedness is subject to
customary intercreditor arrangements reasonably satisfactory to the Administrative Agent.
“Permitted Unsecured Refinancing Debt” shall mean unsecured Indebtedness
incurred by the Borrower in the form of one or more series of senior or subordinated unsecured
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notes or loans; provided that (a) such Indebtedness constitutes Refinancing Term Loan
Indebtedness in respect of Term Loans (including portions of Classes of Term Loans), (b) such
Indebtedness is not guaranteed by any Subsidiaries other than the Loan Parties, (c) such
Indebtedness is not secured by any Lien or any property or assets of Holdings, the Borrower or
any Restricted Subsidiary and (d) if such Indebtedness is contractually subordinated to the
Obligations, such subordination terms shall be market terms at the time of incurrence of such
Indebtedness.
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee pension benefit plan”, as defined in Section 3(2) of
ERISA (other than a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA
or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any
of its ERISA Affiliates is (or, if such plan were terminated, would under Section 4069 of ERISA
be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” has the meaning assigned to such term in Section 9.01(d).
“Pounds Sterling” or “£” means the lawful money of the United Kingdom.
“Prepayment Event” means:
(a) any non-ordinary course sale, transfer, lease or other disposition (including
pursuant to a sale and leaseback transaction and by way of merger or consolidation) (for purposes
of this defined term, collectively, “dispositions”) of any asset of Holdings, the Borrower or any
Restricted Subsidiary, other than (i) dispositions described in clauses (a) through (i) and (k) of
Section 6.05 and (ii) other dispositions resulting in aggregate Net Proceeds not exceeding
(A) $1,000,000 in the case of any single disposition or series of related dispositions and
(B) $2,000,000 for all such dispositions during any fiscal year of the Borrower;
(b) any casualty or other insured damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any asset of Holdings, the
Borrower or any Restricted Subsidiary with a fair market value immediately prior to such event
equal to or greater than $1,000,000; or
(c) the incurrence by Holdings, the Borrower or any Restricted Subsidiary of any
Indebtedness, other than Indebtedness permitted to be incurred under Section 6.01 or permitted
by the Required Lenders pursuant to Section 9.02.
“Prime Rate” means the rate of interest per annum publicly announced from time
to time by JPMorgan as its prime rate in effect at its principal office in New York City. Each
change in the Prime Rate shall be effective from and including the date such change is publicly
announced as being effective.
“Private Side Lender Representatives” means, with respect to any Lender,
representatives of such Lender that are not Public Side Lender Representatives.
“Pro Forma Basis” means, with respect to the calculation of the financial
maintenance covenants contained in Sections 6.12 and 6.13 or any other calculations hereunder or
otherwise for purposes of determining the Total Leverage Ratio, Consolidated Cash Interest
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Expense or Consolidated EBITDA as of any date, that such calculation shall give pro forma effect
to all acquisitions, designations of Restricted Subsidiaries as Unrestricted Subsidiaries, all
designations of Unrestricted Subsidiaries as Restricted Subsidiaries, all issuances, incurrences or
assumptions or repayments and prepayments of Indebtedness in connection therewith (with any
such Indebtedness being deemed to be amortized over the applicable testing period in accordance
with its terms) and all sales, transfers or other dispositions of any Equity Interests in a Restricted
Subsidiary or all or substantially all assets of a Restricted Subsidiary or division or line of
business of a Restricted Subsidiary outside the ordinary course of business (and any related
prepayments or repayments of Indebtedness) that have occurred during (or, if such calculation is
being made for the purpose of determining whether any Incremental Extension of Credit may be
made, any designation under Section 5.14 is permitted or any event subject to Article VI is
permitted, since the beginning of) the four consecutive fiscal quarter period of the Borrower most
recently ended on or prior to such date as if they occurred on the first day of such four
consecutive fiscal quarter period (including expected cost savings (without duplication of actual
cost savings and without duplication of any cost savings added back in determining Consolidated
EBITDA for the applicable period pursuant to, and subject to the limitation set forth in, clause
(a)(xii) of the definition of “Consolidated EBITDA”) to the extent such cost savings would be
permitted to be reflected in pro forma financial information complying with the requirements of
Article 11 of Regulation S-X under the Securities Act as interpreted by the Staff of the SEC, and
as certified by a Financial Officer of Holdings. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the date of determination had been the applicable rate for the entire
period (taking into account any Hedging Agreement applicable to such Indebtedness).
“Proposed Change” has the meaning assigned to such term in Section 9.02(c).
“Public Side Lender Representatives” means, with respect to any Lender,
representatives of such Lender that do not wish to receive MNPI.
“Purchasing Borrower Party” means any of Holdings, the Borrower or any
Restricted Subsidiary.
“Qualified Acquisition” means any acquisition by the Borrower or any Restricted
Subsidiary of all or any substantial part of the assets of a Person or a line of business of a person
or at least a majority of the Equity Interests of a Person, in each case for aggregate consideration
in an amount equal to or in excess of $10,000,000; provided that (a) the Borrower shall have
designated such acquisition as a “Qualified Acquisition” in writing to the Administrative Agent
prior to the consummation thereof, (b) immediately after giving effect to such acquisition, no
Default or Event of Default shall have occurred or be continuing or shall have resulted therefrom
and (c) at least one full fiscal quarter of the Borrower shall have elapsed since the last day of the
12-month period following the consummation of any other acquisition that has been designated
by the Borrower as a “Qualified Acquisition”.
“Qualified Equity Interests” means Equity Interests of Holdings other than
Disqualified Equity Interests.
“Quotation Day” means, with respect to any Eurocurrency Borrowing or
EURIBOR Borrowing and any Interest Period, the day on which it is market practice in the
relevant interbank market for prime banks to give quotations for deposits in the currency of such
Borrowing for delivery on the first day of such Interest Period. If such quotations would
34
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normally be given by prime banks on more than one day, the Quotation Day will be the last of
such days.
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any
Issuing Bank, as applicable.
“Refinanced Debt” has the meaning set forth in the definition of “Refinancing
Term Loan Indebtedness”.
“Refinancing Effective Date” has the meaning assigned to such term in Section
2.23(a).
“Refinancing Facility Agreement” means a Refinancing Facility Agreement, in
form and substance reasonably satisfactory to the Administrative Agent, among Holdings, the
Borrower, the Administrative Agent and one or more Refinancing Term Lenders or Refinancing
Revolving Lenders, as the case may be, establishing commitments in respect of Refinancing
Term Loans and/or Refinancing Revolving Commitments and effecting such other amendments
hereto and to the other Loan Documents as are contemplated by Section 2.23.
“Refinancing Indebtedness” means, in respect of any Indebtedness (the “Original
Indebtedness”), any Indebtedness that extends, renews or refinances such Original Indebtedness
(or any Refinancing Indebtedness in respect thereof); provided that (a) the principal amount (or
accreted value, if applicable) of such Refinancing Indebtedness shall not exceed the principal
amount (or accreted value, if applicable) of such Original Indebtedness except by an amount no
greater than accrued and unpaid interest with respect to such Original Indebtedness and any
reasonable fees, premium and expenses relating to such extension, renewal or refinancing; (b)
either (i) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that
of such Original Indebtedness or (ii) such Refinancing Indebtedness shall not be required to
mature or to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed
dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in
each case, upon the occurrence of an event of default, asset sale or a change in control or as and
to the extent such repayment, prepayment, redemption, repurchase or defeasance would have
been required pursuant to the terms of such Original Indebtedness) prior to the date 91 days after
the Latest Maturity Date in effect on the date of such extension, renewal or refinancing; provided
that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of
such Refinancing Indebtedness shall be permitted so long as the weighted average life to maturity
of such Refinancing Indebtedness shall be no shorter than the weighted average life to maturity of
such Original Indebtedness remaining as of the date of such extension, renewal or refinancing (or,
if shorter, 91 days after the Latest Maturity Date in effect on the date of such extension, renewal
or refinancing); (c) such Refinancing Indebtedness shall not constitute an obligation (including
pursuant to a Guarantee) of the Borrower or any Subsidiary, in each case that shall not have been
(or, in the case of after-acquired Subsidiaries, shall not have been required to become pursuant to
the terms of the Original Indebtedness) an obligor in respect of such Original Indebtedness, and
shall not constitute an obligation of Holdings if Holdings shall not have been an obligor in respect
of such Original Indebtedness; (d) if such Original Indebtedness shall have been subordinated to
the Loan Document Obligations, such Refinancing Indebtedness shall also be subordinated to the
Loan Document Obligations on terms not less favorable in any material respect to the Lenders;
and (e) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than
the assets that secured such Original Indebtedness (or would have been required to secure such
Original Indebtedness pursuant to the terms thereof) or, in the event Liens securing such Original
Indebtedness shall have been contractually subordinated to any Lien securing the Loan Document
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Obligations, by any Lien that shall not have been contractually subordinated to at least the same
extent.
“Refinancing Revolving Lender” means any Person that provides a Refinancing
Revolving Commitment.
“Refinancing Revolving Commitments” means one or more Classes of revolving
credit commitments obtained pursuant to a Refinancing Facility Agreement, in each case obtained
in exchange for, or to extend, renew, refinance or replace, in whole or in part, existing Revolving
Commitments hereunder (including any successive Refinancing Revolving Commitments) (such
existing Revolving Commitments and successive Refinancing Revolving Commitments, the
“Refinanced Commitments”); provided that (a) the amount of such Refinancing Revolving
Commitments shall not exceed the amount of the Refinanced Commitments; (b) the stated final
maturity of such Refinancing Revolving Commitments (and the Refinancing Revolving Loans of
the same Class) shall not be earlier than the Latest Maturity Date of such Refinanced
Commitments, and such stated final maturity of the Refinancing Revolving Commitments (and
the Refinancing Revolving Loans of the same Class) shall not be subject to any conditions that
could result in such stated final maturity occurring on a date that precedes the Latest Maturity
Date of such Refinanced Commitments; (c) such Refinancing Revolving Commitments (and the
Refinancing Revolving Loans of the same Class) shall not constitute an obligation (including
pursuant to a Guarantee) of Holdings, the Borrower or any Subsidiary, in each case that shall not
have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become
pursuant to the terms of the Refinanced Commitments) an obligor in respect of such Refinanced
Commitments (and the Revolving Loans of the same Class), and, in each case, shall constitute an
obligation of Holdings, the Borrower or such Subsidiary to the extent of its obligations in respect
of such Refinanced Debt; and (d) such Refinancing Revolving Commitments (and the
Refinancing Revolving Loans of the same Class) shall contain terms and conditions that are not
materially more favorable (when taken as a whole) to the investors providing such Refinancing
Revolving Commitments than those applicable to the existing Revolving Commitments and
Revolving Loans being refinanced (other than (A) with respect to pricing, maturity, optional
prepayments and redemption, (B) covenants or other provisions applicable only to periods after
the Latest Maturity Date and (C) any financial maintenance covenants described in subclause (I)
of Section 2.23(a)(iv)) on the date such Refinancing Revolving Commitments are incurred.
“Refinancing Revolving Loans” means revolving loans incurred by the Borrower
under this Agreement in respect of Refinancing Revolving Commitments.
“Refinancing Term Lender” means any Person that provides a Refinancing Term
Loan.
“Refinancing Term Loan Indebtedness” means (a) Permitted Pari Passu
Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured
Refinancing Debt or (d) Refinancing Term Loans obtained pursuant to a Refinancing Facility
Agreement, in each case, issued, incurred or otherwise obtained (including by means of the
extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, refinance or
replace, in whole or part, existing Term Loans hereunder (including any successive Refinancing
Term Loan Indebtedness) (such existing Term Loans and successive Refinancing Term Loan
Indebtedness, the “Refinanced Debt”); provided that (i) the principal amount (or accreted value, if
applicable) of such Refinancing Term Loan Indebtedness shall not exceed the principal amount
(or accreted value, if applicable) of such Refinanced Debt except by an amount equal to the sum
of accrued and unpaid interest, accrued fees and premiums (if any) with respect to such
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Refinanced Debt and fees and expenses associated with the refinancing of such Refinanced Debt
with such Refinancing Term Loan Indebtedness; provided, however, that, as part of the same
incurrence or issuance of Indebtedness as such Refinancing Term Loan Indebtedness, the
Borrower may incur or issue an additional amount of Indebtedness under Section 6.01 without
violating this clause (i) (and, for purposes of clarity, (x) such additional amount of Indebtedness
shall not constitute Refinancing Term Loan Indebtedness and (y) such additional amount of
Indebtedness shall reduce the applicable basket under Section 6.01, if any, on a dollar-for-dollar
basis); (ii) the stated final maturity of such Refinancing Term Loan Indebtedness shall not be
earlier than 91 days after the Latest Maturity Date of such Refinanced Debt, and such stated final
maturity of such Refinancing Term Loan Indebtedness shall not be subject to any conditions that
could result in such stated final maturity occurring on a date that precedes the date that is 91 days
after the Latest Maturity Date of such Refinanced Debt; (iii) such Refinancing Term Loan
Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased,
whether on one or more fixed dates, upon the occurrence of one or more events or at the option of
any holder thereof (except, in each case, on the stated final maturity date as permitted pursuant to
the preceding clause (ii) or upon the occurrence of an event of default, asset sale or a change in
control or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance
would have been required pursuant to the terms of such Refinanced Debt) prior to the earlier of
(A) the latest stated final maturity of such Refinanced Debt and (B) 91 days after the Latest
Maturity Date in effect on the date of such extension, renewal or refinancing; provided that,
notwithstanding the foregoing, scheduled amortization payments (however denominated) of such
Refinancing Term Loan Indebtedness in the form of Refinancing Term Loans shall be permitted
so long as the weighted average life to maturity of such Refinancing Term Loan Indebtedness in
the form of Refinancing Term Loans shall be no shorter than 91 days after the weighted average
life to maturity of such Refinanced Debt remaining as of the date of such extension, replacement
or refinancing; (iv) such Refinancing Term Loan Indebtedness shall not constitute an obligation
(including pursuant to a Guarantee) of Holdings, the Borrower or any Subsidiary, in each case
that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been
required to become pursuant to the terms of the Refinanced Debt) an obligor in respect of such
Refinanced Debt, and, in each case, shall constitute an obligation of Holdings, the Borrower or
such Subsidiary to the extent of its obligations in respect of such Refinanced Debt; and (v) in the
case of Refinancing Term Loans, such Refinancing Term Loan Indebtedness shall contain terms
and conditions that are not materially more favorable (when taken as a whole) to the investors
providing such Refinancing Term Loan Indebtedness than those applicable to the existing Term
Loans of the applicable Class being refinanced (other than (A) with respect to pricing, maturity,
amortization, optional prepayments and redemption, (B) covenants or other provisions applicable
only to periods after the Latest Maturity Date and (C) any financial maintenance covenants
described in subclause (I) of Section 2.23(a)(iv)) on the date such Refinancing Term Loans are
incurred.
“Refinancing Term Loans” shall mean one or more Classes of term loans
incurred by the Borrower under this Agreement pursuant to a Refinancing Facility Agreement;
provided that such Indebtedness constitutes Refinancing Term Loan Indebtedness in respect of
Term Loans (including portions of Classes of Term Loans).
“Register” has the meaning assigned to such term in Section 9.04(b).
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents, trustees, managers, advisors,
representatives and controlling persons of such Person and its Affiliates.
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“Release” means any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the
environment (including ambient air, surface water, groundwater, land surface or subsurface
strata) or within or upon any building, structure, facility or fixture.
“Required Lenders” means, at any time, Lenders having Revolving Exposures,
Term Loans and unused Commitments (other than Swingline Commitments) representing more
than 50% of the sum of the Aggregate Revolving Exposure, outstanding Term Loans and unused
Commitments (other than Swingline Commitments) at such time.
“Requirement of Law” means, with respect to any Person, (a) the charter, articles
or certificate of organization or incorporation and bylaws or other organizational or governing
documents of such Person and (b) any law (including common law), statute, ordinance, treaty,
rule, regulation, order, decree, writ, injunction, settlement agreement or determination of any
arbitrator or court or other Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.
“Reset Date” has the meaning assigned to such term in Section 1.06(a).
“Restatement Effective Date” has the meaning assigned to such term in Section 2
of the Amendment and Restatement Agreement.
“Restricted” means, when used in reference to cash or Permitted Investments of
any Person, that such cash or Permitted Investments (a) appear (or would be required to appear)
as “restricted” on a consolidated balance sheet of such Person prepared in conformity with GAAP
(unless such classification results solely from any Lien referred to in clause (b) below) or (b) are
controlled by or subject to any Lien or other preferential arrangement in favor of any creditor,
other than Liens created under the Loan Documents.
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) by Holdings, the Borrower or any Restricted Subsidiary with respect
to its Equity Interests, or any payment or distribution (whether in cash, securities or other
property) by Holdings, the Borrower or any Restricted Subsidiary, including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or
termination of its Equity Interests.
“Restricted Subsidiary” means each Subsidiary other than an Unrestricted
Subsidiary.
“Resulting Revolving Borrowings” has the meaning assigned to such term in
Section 2.21(d).
“Revolving Availability Period” means the period from and including the
Restatement Effective Date to but excluding the earlier of the Revolving Maturity Date and the
date of termination of all the Revolving Commitments.
“Revolving Borrowings” means Revolving Loans of the same Class, Type and
currency, made, converted or continued on the same date and as to which a single Interest Period
is in effect.
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“Revolving Commitments” means, with respect to each Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit
and Swingline Loans hereunder, expressed as an amount representing the maximum possible
aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant
to Section 2.21 and (c) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01 or in the Assignment and Assumption or Incremental
Facility Amendment pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving
Commitments is $120,000,000.
“Revolving Commitment Increase” has the meaning assigned to such term in
Section 2.21(a).
“Revolving Commitment Increase Lender” means, with respect to any Revolving
Commitment Increase, each Additional Lender providing a portion of such Revolving
Commitment Increase.
“Revolving Exposure” means, with respect to any Lender at any time, the sum of
(a) the Dollar Equivalent of the outstanding principal amount of such Lender’s Revolving Loans,
(b) such Lender’s LC Exposure and (c) such Lender’s Swingline Exposure, in each case at such
time.
“Revolving Lender” means a Lender with a Revolving Commitment or, if the
Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.
“Revolving Loan” means a Loan made pursuant to clause (b) of Section 2.01.
“Revolving Maturity Date” means the date that is five years after the Restatement
Effective Date, as the same may be extended pursuant to Section 2.22.
“S&P” means S&P Global Ratings, a segment of S&P Global Inc., and any
successor to its rating agency business.
“Sanctioned Country” means, at any time, a country or territory which is itself
the subject or target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea,
Sudan and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-
related list of designated Persons maintained by OFAC or the U.S. Department of State or by the
United Nations Security Council, the European Union or any EU member state, (b) any Person
operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled
by any such Person or Persons.
“Sanctions” means economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those
administered by OFAC or the U.S. Department of State, or (b) the United Nations Security
Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
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“SEC” means the United States Securities and Exchange Commission or any
Governmental Authority succeeding to any of its principal functions.
“Secured Cash Management Obligations” means the due and punctual payment
of any and all obligations of Holdings, the Borrower and each Restricted Subsidiary (whether
absolute or contingent and however and whenever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor)) arising
in respect of Cash Management Services that (a) are owed to the Administrative Agent or an
Affiliate thereof, or to any Person that, at the time such obligations were incurred, was the
Administrative Agent or an Affiliate thereof, (b) are owed on the Restatement Effective Date to a
Person that is a Lender or an Affiliate of a Lender as of the Restatement Effective Date or (c) are
owed to a Person that is a Lender or an Affiliate of a Lender at the time such obligations are
incurred.
“Secured Hedging Obligations” means the due and punctual payment of any and
all obligations of Holdings, the Borrower and each Restricted Subsidiary arising under each
Hedging Agreement that (a) is with a counterparty that is the Administrative Agent or an Affiliate
thereof, or any Person that, at the time such Hedging Agreement was entered into, was the
Administrative Agent or an Affiliate thereof, (b) is in effect on the Restatement Effective Date
with a counterparty that is a Lender or an Affiliate of a Lender as of the Restatement Effective
Date or (c) is entered into after the Restatement Effective Date with a counterparty that is a
Lender or an Affiliate of a Lender at the time such Hedging Agreement is entered into.
Notwithstanding the foregoing, in the case of any Excluded Swap Guarantor, “Secured Hedging
Obligations” shall not include Excluded Swap Obligations of such Excluded Swap Guarantor.
“Secured Parties” means, collectively, (a) the Lenders, (b) the Administrative
Agent, (c) each Issuing Bank, (d) each provider of Cash Management Services the obligations
under which constitute Secured Cash Management Obligations, (e) each counterparty to any
Hedging Agreement the obligations under which constitute Secured Hedging Obligations, (f) the
beneficiaries of each indemnification obligation undertaken by any Loan Party under this
Agreement or any other Loan Document and (g) the successors and assigns of each of the
foregoing.
“Securities Act” means the United States Securities Act of 1933.
“Security Documents” means the Collateral Agreement, the Mortgages and each
other security agreement or other instrument or document executed and delivered pursuant to any
of the foregoing or pursuant to Section 5.12 to secure any of the Obligations.
“Spin-Off” means the spin-off of Holdings from Exelis, as more fully described
in the Form 10.
“Spin-Off Documents” means the Distribution Agreement, the Transition
Services Agreement, the Tax Matters Agreement, the Employee Matters Agreement and the
Intellectual Property License Agreements, together with any other agreements, instruments or
other documents entered into in connection with any of the foregoing, each on substantially the
terms described in the Form 10.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including any marginal, special, emergency or
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[[3680601]]
supplemental reserves) expressed as a decimal established by the Board of Governors and any
other banking authority (domestic or foreign) to which the Administrative Agent or any Lender
(including any branch, Affiliate or fronting office making or holding a Loan) is subject for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board of Governors). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other business entity of which a
majority of the shares or securities or other interests having ordinary voting power for the election
of directors or other governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned, or the management
of which is otherwise controlled, directly or indirectly through one or more intermediaries, by
such Person.
“Subsidiary” means any subsidiary of Holdings (other than the Borrower).
“Subsidiary Loan Party” means each Restricted Subsidiary that is or, after the
date hereof, becomes a party to the Collateral Agreement.
“Successor Borrower” has the meaning assigned to such term in Section 6.03(a).
“SunTrust” means SunTrust Bank.
“Supplemental Perfection Certificate” means a certificate in the form of
Exhibit D or any other form approved by the Administrative Agent.
“Swap Obligations” means, with respect to Holdings or any Subsidiary Loan
Party, an obligation to pay or perform under any agreement, contract or transaction that
constitutes a “swap” within the meaning of § 1a(47) of the Commodity Exchange Act.
“Swingline Commitment” means, with respect to each Swingline Lender, the
commitment of such Swingline Lender to make Swingline Loans pursuant to Section 2.04;
provided that the Swingline Commitment of each of JPMorgan, Citibank, SunTrust and U.S.
Bank, individually, shall not exceed $2,500,000.
“Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at
any time shall be the sum of (a) such Lender’s Applicable Percentage of the aggregate principal
amount of all Swingline Loans outstanding at such time (excluding, in the case of any Revolving
Lender that is a Swingline Lender, Swingline Loans made by it and outstanding at such time to
the extent that the other Revolving Lenders shall not have funded their participations in such
Swingline Loans), adjusted to give effect to any reallocation under Section 2.20 of the Swingline
Exposure of Defaulting Lenders in effect at such time, and (b) in the case of any Revolving
Lender that is a Swingline Lender, the aggregate principal amount of all Swingline Loans made
by such Lender and outstanding at such time to the extent that the other Revolving Lenders shall
not have funded their participations in such Swingline Loans.
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[[3680601]]
“Swingline Lenders” means each of JPMorgan, Citibank, SunTrust and U.S.
Bank, in its capacity as a lender of Swingline Loans hereunder, and any other Revolving Lender
designated as a Swingline Lender pursuant to a joinder agreement executed by the Borrower and
such Revolving Lender and reasonably satisfactory to the Administrative Agent, in each case in
its capacity as a lender of Swingline Loans hereunder.
“Swingline Loan” means a Loan made pursuant to Section 2.04.
“TARGET Day” means any day on which TARGET2 is open for business.
“TARGET2” means the Trans-European Automated Real Time Gross Settlement
Express Transfer payment system which utilizes a single shared platform and which was
launched on November 19, 2007.
“Tax Matters Agreement” means the Tax Matters Agreement between Exelis and
Holdings, dated as of September 25, 2014.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Commitments” means, collectively, the Tranche A Term Commitments
and any commitments to make Incremental Term Loans.
“Term Lenders” means, collectively, the Tranche A Term Lenders and any
Lenders with an outstanding Incremental Term Loan or a Commitment to make an Incremental
Term Loan.
“Term Loans” means, collectively, the Tranche A Term Loans and any
Incremental Term Loans.
“Total Leverage Ratio” means, as of the last day of any fiscal quarter, the ratio of
(a) Consolidated Debt on such date to (b) Consolidated EBITDA for the four consecutive fiscal
quarters of Holdings ended on such date.
“Tranche A Term Commitments” has the meaning assigned to the term “New
Tranche A Term Commitments” in the Amendment and Restatement Agreement. The initial
aggregate amount of the Lenders’ Tranche A Term Commitments is $80,000,000.
“Tranche A Term Lender” means a Lender with a Tranche A Term Commitment
or an outstanding Tranche A Term Loan.
“Tranche A Term Loan” means a Loan made pursuant to Section 5 of the
Amendment and Restatement Agreement.
“Tranche A Term Maturity Date” means the date that is five years after the
Restatement Effective Date, as the same may be extended pursuant to Section 2.22.
“Transaction Costs” means all fees, costs and expenses incurred or payable by
Holdings, the Borrower or any Subsidiary in connection with the Transactions.
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“Transactions” means, collectively, (a) the execution, delivery and performance
by each Loan Party of the Loan Documents (including this Agreement) to which it is to be a
party, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder and (b) the payment of the Transaction Costs.
“Transition Services Agreement” means the Transition Services Agreement
between Exelis and Holdings and/or one or more of its subsidiaries, dated as of September 25,
2014.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the
rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by
reference to the Adjusted LIBO Rate, the Adjusted EURIBO Rate or the Alternate Base Rate.
“U.S. Bank” means U.S. Bank National Association.
“U.S. Person” means a “United States person” within the meaning of Section
7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in
Section 2.17(f)(ii)(B)(3).
“Unrestricted Cash” means, at any time, the aggregate amount of cash and
Permitted Investments owned at such time by Holdings, the Borrower and the Restricted
Subsidiaries; provided that such cash and Permitted Investments are not Restricted.
“Unrestricted Subsidiaries” means (a) any Subsidiary that is designated as an
Unrestricted Subsidiary by the Borrower pursuant to Section 5.14 subsequent to the Restatement
Effective Date and (b) any Subsidiary of an Unrestricted Subsidiary. As of the Restatement
Effective Date, there shall be no Unrestricted Subsidiaries.
“Unrestricted Subsidiary Reconciliation Statement” means, with respect to any
consolidated balance sheet or statement of income and comprehensive income, cash flows or
stockholders’ equity of Holdings and its consolidated subsidiaries, such financial statement (in
substantially the same form) prepared on the basis of consolidating the accounts of Holdings, the
Borrower and the Restricted Subsidiaries and treating Unrestricted Subsidiaries as if they were
not consolidated with Holdings and otherwise eliminating all accounts of Unrestricted
Subsidiaries, together with an explanation of reconciliation adjustments in reasonable detail.
“USA PATRIOT Act” means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
“Voting Equity Interests” of any Person means the Equity Interests of such
Person ordinarily having the power to vote for the election of the directors of such Person.
“Weighted Average Yield” means, with respect to any Loan or Commitment, the
weighted average yield to stated maturity of such Loan or Commitment based on the interest rate
or rates or unused commitment or similar fees applicable thereto and giving effect to all upfront
or similar fees or original issue discount payable to the Lenders advancing such Loan or
Commitment with respect thereto, but excluding any arrangement, commitment, structuring and
underwriting fees paid or payable to the arrangers (or similar titles) or their affiliates, in each case
in their capacities as such, in connection with such Loans and that are not shared with all Lenders
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providing the applicable Incremental Extension of Credit; provided that for purposes of
calculating the Weighted Average Yield for any Incremental Term Loan or Revolving
Commitments (and the Revolving Loans to be made thereunder) in respect of any Revolving
Commitment Increase, original issue discount and upfront fees shall be equated to interest based
on an assumed four-year life to maturity (or, if shorter in respect of such Incremental Extension
of Credit, the actual life to maturity of such Incremental Extension of Credit). For purposes of
determining the Weighted Average Yield of any floating rate Indebtedness at any time, the rate of
interest applicable to such Indebtedness at such time shall be assumed to be the rate applicable to
such Indebtedness at all times prior to maturity; provided that appropriate adjustments shall be
made for any changes in rates of interest provided for in the documents governing such
Indebtedness (other than those resulting from fluctuations in interbank offered rates, prime rates,
Federal funds rates or other external indices not influenced by the financial performance or
creditworthiness of Holdings, the Borrower or any Subsidiary).
“wholly owned Subsidiary” means, with respect to any Person at any date, a
subsidiary of such Person of which securities or other ownership interests representing 100% of
the Equity Interests (other than directors’ qualifying shares) are, as of such date, owned,
controlled or held by such Person or one or more wholly owned Subsidiaries of such Person or by
such Person and one or more wholly owned Subsidiaries of such Person.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.
“Withholding Agent” means any Loan Party, the Administrative Agent and any
other applicable withholding agent.
“Write-Down and Conversion Powers” means, with respect to any EEA
Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority
from time to time under the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by
Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a
“Eurocurrency Revolving Borrowing”).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise or except as expressly provided herein, (a) any
definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, amended and restated, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth in the Loan Documents), (b) any
definition of or reference to any statute, rule or regulation shall be construed as referring thereto
as from time to time amended, supplemented or otherwise modified (including by succession of
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comparable successor laws), unless otherwise expressly stated to the contrary, (c) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (d) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (f) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract
rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided that (i) if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision (including any
definition) hereof to eliminate the effect of any change occurring after the Restatement Effective
Date in GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended in accordance
herewith, (ii) notwithstanding any other provision contained herein, all terms of an accounting or
financial nature used herein shall be construed, and all computations of amounts and ratios
referred to herein shall be made, without giving effect to any election under Statement of
Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial
Liabilities, or any successor thereto (including pursuant to Accounting Standard Codifications), to
value any Indebtedness of Holdings, the Borrower or any Subsidiary at “fair value”, as defined
therein and (iii) notwithstanding any change in GAAP after the Restatement Effective Date
(whether or not such change is, as of the Restatement Effective Date, scheduled to occur after the
Restatement Effective Date) which would have the effect of treating any lease properly accounted
for as an operating lease prior to such accounting change as a capital lease or which reclassifies
capital leases using different terminology (e.g., as a “finance lease”) after giving effect to any
such accounting change, for all purposes of calculating Indebtedness for any purpose under this
Agreement, the Loan Parties shall continue to make such determinations and calculations with
respect to all leases (whether then in existence or thereafter entered into) in accordance with
GAAP (as it relates to such issue) as in effect prior to such change and consistent with their past
practices.
SECTION 1.05. Pro Forma Calculations. With respect to any period during
which any acquisition permitted by this Agreement or any sale, transfer or other disposition of
any Equity Interests in a Subsidiary or all or substantially all the assets of a Subsidiary or division
or line of business of a Subsidiary outside the ordinary course of business occurs, for purposes of
determining compliance with the covenants contained in Sections 6.04(b), 6.12 and 6.13 or
otherwise for purposes of determining the Total Leverage Ratio, Consolidated Cash Interest
Expense and Consolidated EBITDA, calculations with respect to such period shall be made on a
Pro Forma Basis.
SECTION 1.06. Exchange Rates; Currency Equivalents. (a) Not later than 1:00
p.m., New York City time, on each Calculation Date, the Administrative Agent shall (x)
determine the Exchange Rate as of such Calculation Date with respect to the applicable Permitted
Foreign Currency and (y) give notice thereof to the applicable Issuing Lender and the Borrower.
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The Exchange Rates so determined shall become effective (i) in the case of the initial Calculation
Date, on the Restatement Effective Date and (ii) in the case of each subsequent Calculation Date,
on the first Business Day immediately following such Calculation Date (a “Reset Date”), shall
remain effective until the next succeeding Reset Date and shall for all purposes of this Agreement
(other than any provision expressly requiring the use of a current exchange rate) be the Exchange
Rates employed in converting any amounts between dollars and any Permitted Foreign Currency.
(b) Solely for purposes of Article II and related definitional provisions to the
extent used therein, the applicable amount of any currency (other than dollars) for purposes of
the Loan Documents shall be such Dollar Equivalent amount as determined by the
Administrative Agent and notified to the applicable Issuing Lender and the Borrower in
accordance with Section 1.06(a). If any basket is exceeded solely as a result of fluctuations
in the applicable Exchange Rate after the last time such basket was utilized, such basket will
not be deemed to have been exceeded solely as a result of such fluctuations in the applicable
Exchange Rate. Amounts denominated in a Permitted Foreign Currency will be converted to
dollars for the purposes of (A) testing the financial maintenance covenants under Sections
6.12 and 6.13, at the Exchange Rate as of the last day of the fiscal quarter for which such
measurement is being made, and (B) calculating the Consolidated Cash Interest Expense and
the Total Leverage Ratio (other than for purposes of determining compliance with Sections
6.12 and 6.13), at the Exchange Rate as of the date of calculation, and will, in the case of
Indebtedness, reflect the currency translation effects, determined in accordance with GAAP,
of Hedging Agreements permitted hereunder for currency exchange risks with respect to the
applicable currency in effect on the date of determination of the Dollar Equivalent of such
Indebtedness.
(c) For purposes of Section 6.01, the amount of any Indebtedness
denominated in any currency other than dollars shall be calculated based on the applicable
Exchange Rate, in the case of such Indebtedness incurred or committed, on the date that such
Indebtedness was incurred or committed, as applicable; provided that if such Indebtedness is
incurred to refinance other Indebtedness denominated in a currency other than dollars, and
such refinancing would cause the applicable dollar-denominated restriction to be exceeded if
calculated at the applicable Exchange Rate on the date of such refinancing, such dollar-
denominated restrictions shall be deemed not to have been exceeded so long as the principal
amount of such Refinancing Indebtedness does not exceed the sum of (i) the outstanding or
committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii)
the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses
incurred in connection with such refinancing.
(d) For purposes of Sections 6.02, 6.04, 6.05 and 6.08, the amount of any
Liens, investments, asset sales and Restricted Payments, as applicable, denominated in any
currency other than dollars shall be calculated based on the applicable Exchange Rate.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth
herein, each Revolving Lender agrees to make Revolving Loans denominated in dollars or in any
Permitted Foreign Currency to the Borrower from time to time, in each case during the Revolving
Availability Period, in an aggregate principal amount that will not result in such Lender’s
Revolving Exposure exceeding such Lender’s Revolving Commitment or the Aggregate
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Revolving Exposure exceeding the Aggregate Revolving Commitment; provided that the
Borrower shall not request, and the Revolving Lenders shall not be required to fund, a Revolving
Loan that is denominated in a Permitted Foreign Currency if, immediately after the making of
such Revolving Loan, the Dollar Equivalent of the aggregate principal amount of all Revolving
Loans then outstanding that are denominated in any Permitted Foreign Currency (including such
requested Revolving Loan) would exceed $25,000,000. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans. For the avoidance of doubt, any Revolving Loans, Swingline Loans and
Letters of Credit outstanding under the Original Credit Agreement immediately prior to the
Restatement Effective Date shall, subject to the terms of the Amendment and Restatement
Agreement, continue to be outstanding hereunder on the Restatement Effective Date subject to
the terms and conditions set forth herein.
(b) Subject to the terms and conditions set forth herein and in the
Amendment and Restatement Agreement, each Tranche A Term Lender made a Tranche A
Term Loan to the Borrower on the Restatement Effective Date. For the avoidance of doubt,
the Tranche A Term Loans made by the Tranche A Term Lenders to the Borrower on the
Restatement Effective Date under the Amendment and Restatement Agreement shall
constitute Tranche A Term Loans hereunder. Amounts repaid or prepaid in respect of Term
Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made
by the Lenders ratably in accordance with their respective Commitments of the applicable Class.
The failure of any Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Borrowing denominated in dollars shall
be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in
accordance herewith, (ii) each Borrowing denominated in Euro shall be comprised entirely of
EURIBOR Loans and (iii) each Borrowing denominated in any Permitted Foreign Currency
(other than Euro) shall be comprised entirely of Eurocurrency Loans. Each Swingline Loan
shall be an ABR Loan. Each Lender at its option may make any Eurocurrency Loan or
EURIBOR Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency
Borrowing or EURIBOR Borrowing, such Borrowing shall be in an aggregate amount that is
an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum;
provided that a Eurocurrency Borrowing or EURIBOR Borrowing that results from a
continuation of an outstanding Eurocurrency Borrowing or EURIBOR Borrowing may be in
an aggregate amount that is equal to such outstanding Borrowing. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $500,000. Each Swingline Loan shall be in an
amount that is an integral multiple of $100,000 and not less than $500,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that there shall
not be more than a total of five Eurocurrency Borrowings and EURIBOR Borrowings in the
aggregate at any time outstanding. Notwithstanding anything to the contrary herein, an ABR
Revolving Borrowing or a Swingline Loan may be in an aggregate amount that is equal to the
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entire unused balance of the Aggregate Revolving Commitment or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).
SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing
or Term Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (other than a request for any Borrowing denominated in a Permitted Foreign Currency,
which request shall be made in writing) (a) in the case of a Eurocurrency Borrowing denominated
in dollars or a EURIBOR Borrowing, not later than 11:00 a.m., Local Time, three Business Days
before the date of the proposed Borrowing, (b) in the case of a Eurocurrency Borrowing
denominated in a Permitted Foreign Currency, not later than 11:00 a.m., London time, four
Business Days before the date of the proposed Borrowing or (c) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an LC Disbursement denominated in dollars as contemplated by
Section 2.05(e) may be given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery, facsimile or other electronic imaging to the Administrative
Agent of a written Borrowing Request signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information (to the extent applicable, in
compliance with Sections 2.01 and 2.02):
(i) whether the requested Borrowing is to be a Revolving Borrowing, a Tranche
A Term Borrowing or a Borrowing of any Incremental Term Loan;
(ii) the currency and the aggregate amount of such Borrowing;
(iii) the requested date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing, a Eurocurrency
Borrowing or a EURIBOR Borrowing;
(v) in the case of a Eurocurrency Borrowing or a EURIBOR Borrowing, the
initial Interest Period to be applicable thereto, which shall be a period contemplated by
the definition of the term “Interest Period”;
(vi) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06(a), or, if the
Borrowing is being requested to finance the reimbursement of an LC Disbursement
denominated in dollars in accordance with Section 2.05(e), the identity of the Issuing
Bank that made such LC Disbursement; and
(vii) that as of such date Sections 4.03(a) and 4.03(b) are satisfied.
If no election as to the Type of Borrowing is specified, other than with respect to Borrowings
denominated in a Permitted Foreign Currency, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency
Borrowing or EURIBOR Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. If no currency is specified with respect to any requested
Revolving Loan, the Borrower shall be deemed to have selected dollars. Promptly following
receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall
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advise each Lender of the applicable Class of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, from time to time during the Revolving Availability Period, each Swingline Lender
severally agrees to make Swingline Loans, denominated in dollars, to the Borrower in an
aggregate principal amount at any time outstanding that will not result in (i) the aggregate
principal amount of the outstanding Swingline Loans exceeding $10,000,000, (ii) the aggregate
principal amount of the outstanding Swingline Loans made by such Swingline Lender exceeding
the lesser of (A) the Revolving Commitment of such Swingline Lender (in its capacity as a
Revolving Lender) and (B) the Swingline Commitment of such Swingline Lender, (iii) such
Swingline Lender’s Revolving Exposure exceeding such Revolving Lender’s Revolving
Commitment or (iv) the Aggregate Revolving Exposure exceeding the Aggregate Revolving
Commitment; provided that (A) the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan and (B) each Swingline Loan shall be made as
part of a Borrowing consisting of Swingline Loans made by the Swingline Lenders ratably in
accordance with the respective Revolving Commitments of the Swingline Lenders (in their
capacities as Revolving Lenders). Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not
relieve any other Swingline Lender of its obligations hereunder to make its ratable portion of such
Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other
Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other
Swingline Lender on the date of any Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone, not later than 12:00 noon, New York City
time, on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and
shall be confirmed promptly by hand delivery, facsimile or other electronic imaging to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lenders of any such notice received from the Borrower. Each
Swingline Lender shall make its ratable portion of the requested Swingline Loan available to
the Borrower by means of a credit to an account of the Borrower maintained with the
Administrative Agent for such purpose (or, in the case of a Swingline Loan made to finance
the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to
the applicable Issuing Bank or, to the extent that the Revolving Lenders have made payments
pursuant to Section 2.05(e) to reimburse such Issuing Bank, to such Revolving Lenders and
such Issuing Bank as their interests may appear) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.
(c) Any Swingline Lender may by written notice given to the Administrative
Agent not later than 12:00 noon, New York City time, on any Business Day require the
Revolving Lenders to acquire participations on such Business Day in all or a portion of its
Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline
Loans in which the Revolving Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Revolving Lender, specifying in
such notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline
Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of the
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Swingline Lenders, such Lender’s Applicable Percentage of such Swingline Loan or
Swingline Loans. Each Revolving Lender acknowledges and agrees that, in making any
Swingline Loan, each Swingline Lender shall be entitled to rely, and shall not incur any
liability for relying, upon the representation and warranty of Holdings and the Borrower
deemed made pursuant to Section 4.03 unless, at least one Business Day prior to the time
such Swingline Loan was made, the Majority in Interest of the Revolving Lenders shall have
notified such Swingline Lender (with a copy to the Administrative Agent) in writing that, as a
result of one or more events or circumstances described in such notice, one or more of the
conditions precedent set forth in Section 4.03(a) or 4.03(b) would not be satisfied if such
Swingline Loan were then made (it being understood and agreed that, in the event such
Swingline Lender shall have received any such notice, it shall have no obligation to make any
Swingline Loan until and unless it shall be satisfied that the events and circumstances
described in such notice shall have been cured or otherwise shall have ceased to exist). Each
Revolving Lender further acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or any reduction or termination of the Revolving Commitments, and
that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Lenders under this paragraph),
and the Administrative Agent shall promptly remit to the applicable Swingline Lenders the
amounts so received by it from the Revolving Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to such Swingline Lenders. Any amounts received by a
Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect
of a Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted by such Swingline Lender to the
Administrative Agent; any such amounts received by the Administrative Agent shall be
promptly remitted by the Administrative Agent to the Revolving Lenders that shall have
made their payments pursuant to this paragraph and to the applicable Swingline Lenders, as
their interests may appear; provided that any such payment so remitted shall be repaid to the
applicable Swingline Lenders or to the Administrative Agent, as applicable, and thereafter to
the Borrower, if and to the extent such payment is required to be refunded to the Borrower for
any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such
Swingline Loan.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account (or for the account of any Subsidiary so long as the Borrower is a joint and several co-
applicant in respect of such Letter of Credit), denominated in dollars or in a Permitted Foreign
Currency and in a form reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank, at any time and from time to time during the Revolving Availability Period.
Notwithstanding anything contained in any letter of credit application or other agreement (other
than this Agreement or any Security Document) submitted by the Borrower to, or entered into by
the Borrower with, any Issuing Bank relating to any Letter of Credit, (i) all provisions of such
letter of credit application or other agreement purporting to grant Liens in favor of such Issuing
Bank to secure obligations in respect of such Letter of Credit shall be disregarded, it being agreed
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that such obligations shall be secured to the extent provided in this Agreement and in the Security
Documents, and (ii) in the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of such letter of credit application or such other
agreement, as applicable, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit or the amendment, renewal or
extension of an outstanding Letter of Credit (other than any automatic renewal permitted
pursuant to paragraph (c) of this Section), the Borrower shall hand deliver or fax (or transmit
by electronic communication, if arrangements for doing so have been approved by such
Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the requested date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such Letter of Credit
is to expire (which shall comply with paragraph (c) of this Section), the currency and amount
of such Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be requested by the applicable Issuing Bank as necessary to enable such
Issuing Bank to prepare, amend, renew or extend such Letter of Credit. If requested by the
applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such
Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter
of Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension, (i) the LC Exposure shall not exceed the LC Sublimit, (ii) the Revolving Exposure
of each Revolving Lender shall not exceed such Revolving Lender’s Revolving Commitment,
(iii) the Aggregate Revolving Exposure shall not exceed the Aggregate Revolving
Commitment and (iv) following the effectiveness of any Maturity Date Extension Request
with respect to the Revolving Commitments, the LC Exposure in respect of all Letters of
Credit having an expiration date after the second Business Day prior to the applicable
Existing Maturity Date shall not exceed the aggregate Revolving Commitments of the
Consenting Lenders extended pursuant to Section 2.22. Each Issuing Bank agrees that it shall
not permit any issuance, amendment, renewal or extension of a Letter of Credit to occur
unless it gives the Administrative Agent written notice thereof as required under paragraph (l)
of this Section. Notwithstanding anything herein to the contrary, none of JPMorgan,
Citibank, SunTrust or U.S. Bank, each individually in its capacity as an Issuing Bank, shall
be required to issue, amend, renew or extend any Letter of Credit hereunder if, after giving
effect to such issuance, amendment, renewal or extension, the LC Exposure of such Issuing
Bank would exceed $6,250,000.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date that is one year after the date of the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such
renewal or extension) and (ii) the date that is five Business Days prior to the Revolving
Maturity Date; provided, however, that any Letter of Credit may, upon the request of the
Borrower, include a provision whereby such Letter of Credit shall be renewed automatically
for additional consecutive periods of one year or less (but not beyond the date that is five
Business Days prior to the Revolving Maturity Date) unless the applicable Issuing Bank
notifies the beneficiary thereof at least 30 days prior to the then-applicable expiration date
that such Letter of Credit will not be renewed. For the avoidance of doubt, if the Revolving
Maturity Date shall be extended pursuant to Section 2.22, “Revolving Maturity Date” as
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referenced in this paragraph shall refer to the Revolving Maturity Date as extended pursuant
to Section 2.22; provided that, notwithstanding anything in this Agreement (including Section
2.22 hereof) or any other Loan Document to the contrary, the Revolving Maturity Date, as
such term is used in reference to any Issuing Bank or any Letter of Credit issued thereby, may
not be extended with respect to any Issuing Bank without the prior written consent of such
Issuing Bank.
(d) Participations. By the issuance of a Letter of Credit (or an amendment to
a Letter of Credit increasing the amount thereof) and without any further action on the part of
the applicable Issuing Bank or the Lenders, the Issuing Bank that is the issuer of such Letter
of Credit hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit equal to such
Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, such Revolving Lender’s Applicable
Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason. Each
Revolving Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default or any
reduction or termination of the Revolving Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender further acknowledges and agrees that, in issuing, amending, renewing or extending
any Letter of Credit, the applicable Issuing Bank shall be entitled to rely, and shall not incur
any liability for relying, upon the representation and warranty of Holdings and the Borrower
deemed made pursuant to Section 4.03 unless, at least one Business Day prior to the time
such Letter of Credit is issued, amended, renewed or extended (or, in the case of an automatic
renewal permitted pursuant to paragraph (c) of this Section, at least one Business Day prior to
the time by which the election not to extend must be made by the applicable Issuing Bank),
the Majority in Interest of the Revolving Lenders shall have notified the applicable Issuing
Bank (with a copy to the Administrative Agent) in writing that, as a result of one or more
events or circumstances described in such notice, one or more of the conditions precedent set
forth in Section 4.03(a) or 4.03(b) would not be satisfied if such Letter of Credit were then
issued, amended, renewed or extended (it being understood and agreed that, in the event any
Issuing Bank shall have received any such notice, no Issuing Bank shall have any obligation
to issue, amend, renew or extend any Letter of Credit until and unless it shall be satisfied that
the events and circumstances described in such notice shall have been cured or otherwise
shall have ceased to exist).
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, then the Borrower shall reimburse such LC Disbursement by
paying to the Administrative Agent an amount equal to such LC Disbursement not later than
(i) if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m.,
New York City time, on any Business Day, then 12:00 noon, New York City time, on such
Business Day, or (ii) otherwise, 12:00 noon, New York City time, on the Business Day
immediately following the day that the Borrower receives such notice; provided that, in the
case of an LC Disbursement denominated in dollars in an amount equal to or in excess of
$500,000, the Borrower may, subject to the conditions to borrowing set forth herein, request
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in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR
Revolving Borrowing or a Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to
reimburse any LC Disbursement by the time specified above in this paragraph, then (A) if the
applicable LC Disbursement relates to a Letter of Credit denominated in a currency other
than dollars, Euros or Pounds Sterling, automatically and with no further action, the
obligation to reimburse such LC Disbursement shall be permanently converted into an
obligation to reimburse the Dollar Equivalent, determined using the Exchange Rate
calculated as of the date when such payment was due, of such LC Disbursement and (B) the
Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement
(and the Dollar Equivalent thereof if the immediately preceding clause (A) is applicable), the
currency and amount of the payment then due from the Borrower in respect thereof and such
Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such
notice, each applicable Revolving Lender shall pay to the Administrative Agent its
Applicable Percentage of the amount then due from the Borrower in the currency of the
applicable LC Disbursement (unless such LC Disbursement relates to a Letter of Credit
denominated in a currency other than dollars, Euros or Pounds Sterling, in which case such
payment shall be made in dollars), in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders under this paragraph), and the Administrative
Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from
the applicable Revolving Lenders. Promptly following receipt by the Administrative Agent
of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then
to such Revolving Lenders and such Issuing Bank as their interests may appear. Any
payment made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing
Bank for any LC Disbursement (other than the funding of an ABR Revolving Borrowing or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any term or provision
thereof or hereof, (ii) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of such Letter
of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None
of the Administrative Agent, the Lenders, the Issuing Banks or any of their Related Parties
shall have any liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit, any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding sentence), any error,
omission, interruption, loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence
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arising from causes beyond the control of the applicable Issuing Bank; provided that the
foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to special, indirect, consequential or punitive
damages, claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s
failure to exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree
that, in the absence of gross negligence or wilful misconduct on the part of an Issuing Bank
(as finally determined by a court of competent jurisdiction in a final and nonappealable
judgment), such Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit, and any such acceptance or refusal shall
be deemed not to constitute gross negligence or wilful misconduct.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment
under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative Agent
and the Borrower by telephone (confirmed by facsimile or other electronic imaging) of such
demand for payment and whether such Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the
applicable Revolving Lenders with respect to any such LC Disbursement in accordance with
paragraph (e) of this Section.
(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof (or, in the case of clause (iii)(B) below, the
Dollar Equivalent of such amount, determined in accordance with paragraph (e) of this
Section) shall bear interest, for each day from and including the date such LC Disbursement
is made to but excluding the date that the Borrower reimburses such LC Disbursement in full,
at (i) in the case of any LC Disbursement denominated in dollars, the rate per annum then
applicable to ABR Revolving Loans (and payable in dollars), (ii) in the case of an LC
Disbursement denominated in Euros or Pounds Sterling, a rate per annum determined by the
applicable Issuing Bank (which determination will be conclusive absent manifest error) to
represent its cost of funds plus the Applicable Rate used to determine interest applicable to
Eurocurrency Revolving Loans or EURIBOR Revolving Loans (and payable in such
currency) and (iii) in the case of an LC Disbursement denominated in any Permitted Foreign
Currency other than Euros and Pounds Sterling, (A) in the case of any LC Disbursement that
is reimbursed on or before the date such LC Disbursement is required to be reimbursed under
paragraph (e) of this Section, a rate per annum determined by the applicable Issuing Bank
(which determination will be conclusive absent manifest error) to represent its cost of funds
plus the Applicable Rate used to determine interest applicable to Eurocurrency Revolving
Loans or EURIBOR Revolving Loans (and payable in such currency) and (B) in the case of
any LC Disbursement that is reimbursed after the date such LC Disbursement is required to
be reimbursed under paragraph (e) of this Section, the rate per annum then applicable to ABR
Revolving Loans (and payable in dollars); provided that, if the Borrower fails to reimburse
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such LC Disbursement in full when due pursuant to paragraph (e) of this Section, then
Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be paid to the
Administrative Agent, for the account of the applicable Issuing Bank, except that interest
accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e)
of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment, and shall be payable on demand or, if no demand has been made, on
the date on which the Borrower reimburses the applicable LC Disbursement in full.
(i) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day on which the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, a Majority in Interest of the Revolving Lenders) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash and in the currency of each applicable Letter of Credit equal to
the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that
the obligation to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Section 7.01. The Borrower also shall deposit cash collateral in
accordance with this paragraph as and to the extent required by Section 2.11(b), 2.20(c) or
2.22(c). Each such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest earned on the investment of
such deposits, which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account.
Notwithstanding the terms of any Security Document, moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements
for which they have not been reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at
such time or, if the maturity of the Loans has been accelerated (but subject to (i) the consent
of a Majority in Interest of the Revolving Lenders and (ii) in the case of any such application
at a time when any Revolving Lender is a Defaulting Lender (but only if, after giving effect
thereto, the remaining cash collateral shall be less than the aggregate LC Exposure of all the
Defaulting Lenders), the consent of each Issuing Bank), be applied to satisfy other obligations
of the Borrower under this Agreement. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived. If the Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 2.11(b), such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower to the extent that, after
giving effect to such return, the Aggregate Revolving Exposure would not exceed the
Aggregate Revolving Commitment and no Default shall have occurred and be continuing. If
the Borrower is required to provide an amount of cash collateral hereunder pursuant to
Section 2.20(c), such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower to the extent that, after giving effect to such return, no Issuing Bank shall have any
exposure in respect of any outstanding Letter of Credit that is not fully covered by the
Revolving Commitments of the Non-Defaulting Revolving Lenders and/or the remaining
cash collateral and no Default shall have occurred and be continuing.
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(j) Designation of Additional Issuing Banks. The Borrower may, at any time
and from time to time, with the consent of the Administrative Agent (which consent shall not
be unreasonably withheld), designate as additional Issuing Banks one or more Revolving
Lenders that agree to serve in such capacity as provided below. The acceptance by a
Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an
agreement, which shall be in form and substance reasonably satisfactory to the
Administrative Agent, executed by the Borrower, the Administrative Agent and such
designated Revolving Lender and, from and after the effective date of such agreement, (i)
such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this
Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include
such Revolving Lender in its capacity as an issuer of Letters of Credit hereunder.
(k) Termination of an Issuing Bank. The Borrower may terminate the
appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written
notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such
termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging
receipt of such notice and (ii) the tenth Business Day following the date of the delivery
thereof; provided that no such termination shall become effective until and unless the LC
Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall
have been reduced to zero. At the time any such termination pursuant to this clause (k) shall
become effective, the Borrower shall pay all unpaid fees accrued for the account of the
terminated Issuing Bank pursuant to Section 2.12(b). Notwithstanding the effectiveness of
any such termination pursuant to this clause (k), the terminated Issuing Bank shall remain a
party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such termination, but shall not issue any
additional Letters of Credit.
(l) Issuing Bank Reports to the Administrative Agent. Unless otherwise
agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification
obligations set forth elsewhere in this Section, report in writing to the Administrative Agent
(i) periodic activity (for such period or recurrent periods as shall be requested by the
Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including
all issuances, extensions, amendments and renewals, all expirations and cancelations and all
disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank
issues, amends, renews or extends any Letter of Credit, the date of such issuance,
amendment, renewal or extension, and the stated amount of the Letters of Credit issued,
amended, renewed or extended by it and outstanding after giving effect to such issuance,
amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii)
on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and
amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to
reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day,
the date of such failure and the currency and amount of such LC Disbursement and (v) on any
other Business Day, such other information as the Administrative Agent shall reasonably
request as to the Letters of Credit issued by such Issuing Bank.
(m) LC Exposure Determination. For all purposes of this Agreement, the
amount of a Letter of Credit that, by its terms or the terms of any document related thereto,
provides for one or more automatic increases in the stated amount thereof shall be deemed to
be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at the time of
determination.
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SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, Local Time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders; provided that Swingline
Loans shall be made as provided in Section 2.04. The Administrative Agent will make such
Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
denominated in dollars as provided in Section 2.05(e) shall be remitted by the Administrative
Agent to the applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to Section 2.05(e) to reimburse such Issuing Bank, then to such Revolving
Lenders and such Issuing Bank as their interests may appear.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such assumption and
in its sole discretion, make available to the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, (A) in the case of Loans denominated in dollars, the greater of the NYFRB
Rate and a rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation and (B) in the case of Loans denominated in a Permitted
Foreign Currency, the rate determined by the Administrative Agent to be the cost to it of
funding such amount (which determination will be conclusive absent manifest error) or (ii) in
the case of the Borrower, the interest rate applicable to (A) in the case of Loans denominated
in dollars, ABR Loans of the applicable Class and (B) in the case of Loans denominated in a
Permitted Foreign Currency, the interest rate applicable to the subject Loan pursuant to
Section 2.13. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing Request or
designated by Section 2.03 and, in the case of a Eurocurrency Borrowing or a EURIBOR
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or
designated by Section 2.03. Thereafter, the Borrower may elect to convert such Borrowing to a
Borrowing of a different Type (provided that Eurocurrency Borrowings denominated in a
Permitted Foreign Currency may not be converted into ABR Borrowings) or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing or a EURIBOR Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate
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Borrowing. This Section shall not apply to Swingline Borrowings, which may not be converted
or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Administrative Agent of such election by telephone (other than a request pursuant to this
Section with respect to a Borrowing denominated in a Permitted Foreign Currency, which
request shall be made in writing) by the time that a Borrowing Request would be required
under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by
hand delivery, facsimile or other electronic imaging to the Administrative Agent of a written
Interest Election Request signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing, a
Eurocurrency Borrowing or a EURIBOR Borrowing; and
(iv) if the resulting Borrowing is to be a Eurocurrency Borrowing or a
EURIBOR Borrowing, the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition of the term “Interest
Period”.
If any such Interest Election Request requests a Eurocurrency Borrowing or a EURIBOR
Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the applicable Class of the details thereof
and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Borrowing or a EURIBOR Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein,
at the end of such Interest Period (i) in the case of a Eurocurrency Borrowing denominated in
dollars, such Borrowing shall be converted to an ABR Borrowing and (ii) in the case of a
Eurocurrency Borrowing denominated in a Permitted Foreign Currency or a EURIBOR
Borrowing, such Borrowing shall be continued as a Borrowing of the applicable Type for an
Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event of
Default under clause (h) or (i) of Section 7.01 has occurred and is continuing with respect to
Holdings or the Borrower, or if any other Event of Default has occurred and is continuing and
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the Administrative Agent, at the request of a Majority in Interest of the Lenders of any Class,
has notified the Borrower of the election to give effect to this sentence on account of such
other Event of Default, then, in each such case, so long as such Event of Default is
continuing, (i) no outstanding Borrowing (or Borrowing of the applicable Class, as
applicable) denominated in dollars may be converted to or continued as a Eurocurrency
Borrowing, (ii) unless repaid, each Eurocurrency Borrowing (or Eurocurrency Borrowing of
the applicable Class, as applicable) denominated in dollars shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto and (iii) unless repaid, each
Eurocurrency Borrowing denominated in a Permitted Foreign Currency or EURIBOR
Borrowing shall be continued as a Eurocurrency Borrowing or a EURIBOR Borrowing, as
applicable, with an Interest Period of one month’s duration.
SECTION 2.08. Termination and Reduction of Commitments.
(a) Unless previously terminated, (i) the Tranche A Term Commitments shall automatically
terminate at 5:00 p.m., New York City time, on the Restatement Effective Date, and (ii) the
Revolving Commitments shall automatically terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
permanently reduce, the Commitments of any Class; provided that (i) each partial reduction
of the Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce
the Revolving Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans or the Swingline Loans in accordance with Section 2.11, the Aggregate
Revolving Exposure would exceed the Aggregate Revolving Commitment.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof.
Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided
that a notice of termination or reduction of the Revolving Commitments delivered under this
paragraph may state that such notice is conditioned upon the occurrence of one or more
events specified therein, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of any Class
shall be permanent. Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Revolving Loan of such Lender on the
Revolving Maturity Date, (ii) to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Term Loan of such Lender as provided in Section 2.10 and (iii)
to the Swingline Lenders the then unpaid principal amount of each Swingline Loan on the earlier
of the Revolving Maturity Date and the fifth Business Day after such Swingline Loan is made;
provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all
Swingline Loans that were outstanding on the date such Borrowing was requested and the
proceeds of any such Borrowing shall be applied by the Administrative Agent to repay any
Swingline Loans then outstanding.
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(b) The records maintained by the Administrative Agent and the Lenders
shall be prima facie evidence of the existence and amounts of the obligations of the Borrower
in respect of Loans, LC Disbursements, interest and fees due or accrued hereunder; provided
that the failure of the Administrative Agent or any Lender to maintain such records or any
error therein shall not in any manner affect the obligation of the Borrower to pay any amounts
due hereunder in accordance with the terms of this Agreement.
(c) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04) be represented
by one or more promissory notes in such form payable to the payee named therein (or to such
payee and its registered assigns).
SECTION 2.10. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrower shall repay Tranche A Term Borrowings
on each date set forth below, beginning with the date that is the last day of the first fiscal quarter
of Holdings after the Restatement Effective Date in the aggregate principal amount set forth
opposite such date:
Date Amount
December 31, 2017 $1,000,000
March 31, 2018 $1,000,000
June 30, 2018 $1,000,000
September 30, 2018 $1,000,000
December 31, 2018 $1,000,000
March 31, 2019 $1,000,000
June 30, 2019 $1,000,000
September 30, 2019 $1,000,000
December 31, 2019 $1,500,000
March 31, 2020 $1,500,000
June 30, 2020 $1,500,000
September 30, 2020 $1,500,000
December 31, 2020 $2,000,000
March 31, 2021 $2,000,000
June 30, 2021 $2,000,000
September 30, 2021 $2,000,000
December 31, 2021 $2,600,000
March 31, 2022 $2,600,000
June 30, 2022 $2,600,000
September 30, 2022 $2,600,000
Tranche A Maturity Date $47,600,000
Subject to adjustment pursuant to paragraph (c) of this Section, the Borrower shall repay
Incremental Term Loans of any Class as provided in the applicable Incremental Facility
Amendment.
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(b) To the extent not previously paid, (i) all Tranche A Term Loans shall be
due and payable on the Tranche A Term Maturity Date and (ii) all Incremental Term Loans
of any Class shall be due and payable on the maturity date set forth in the applicable
Incremental Facility Amendment.
(c) Any prepayment of a Term Borrowing of any Class shall be applied to
reduce the subsequent scheduled repayments of the Term Borrowings of such Class to be
made pursuant to this Section as directed in writing by the Borrower (or, if the Borrower fails
to so direct the application of any such prepayment, such prepayment shall be applied to
reduce the subsequent scheduled repayments of the Term Borrowings of the applicable Class
to be made pursuant to this Section in direct order of maturity); provided that (A) any
prepayment of any Class of Incremental Term Borrowings shall be applied to subsequent
scheduled repayments as provided in the applicable Incremental Facility Amendment, (B)
any prepayment of Term Borrowings of any Class contemplated by Section 2.23 shall be
applied to subsequent scheduled repayments as provided in such Section and (C) if any
Lender elects to decline a mandatory prepayment of a Term Borrowing in accordance with
Section 2.11(e), then the portion of such prepayment not so declined shall be applied to
reduce the subsequent repayments of such Term Borrowing to be made pursuant to this
Section ratably based on the amount of such scheduled repayments. Furthermore, in the
event that the Term Loans of any Class are cancelled in accordance with Section 9.04(e)(v),
the aggregate principal amount of Term Loans of such Class so cancelled shall be applied to
reduce the subsequent scheduled repayments of the Term Borrowings of such Class to be
made pursuant to this Section ratably based on the amount of such scheduled repayments.
(d) Prior to any repayment of any Term Borrowings of any Class under this
Section, the Borrower shall select the Borrowing or Borrowings of the applicable Class to be
repaid and shall notify the Administrative Agent by telephone (confirmed by hand delivery,
facsimile or other electronic imaging) of such selection not later than 11:00 a.m., New York
City time, three Business Days before the scheduled date of such repayment. Each
repayment of a Term Borrowing shall be applied ratably to the Loans included in the repaid
Term Borrowing. Repayments of Term Borrowings shall be accompanied by accrued interest
on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part, without premium or
penalty, subject to Section 2.16.
(b) In the event and on each occasion that (i) the Aggregate Revolving
Exposure exceeds the Aggregate Revolving Commitment (other than as a result of any
revaluation of the Dollar Equivalent of Revolving Loans or the LC Exposure on any
Calculation Date in accordance with Section 1.06) or (ii) the Aggregate Revolving Exposure
exceeds 105% of the Aggregate Revolving Commitments solely as a result of any revaluation
of the Dollar Equivalent of Revolving Loans or the LC Exposure on any Calculation Date in
accordance with Section 1.06, the Borrower shall prepay Revolving Borrowings (or, if no
such Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent in accordance with Section 2.05(i)) in an aggregate amount equal to
such excess.
(c) In the event and on each occasion that any Net Proceeds are received by
or on behalf of Holdings, the Borrower or any Restricted Subsidiary in respect of any
Prepayment Event (including by the Administrative Agent as loss payee in respect of any
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Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”),
the Borrower shall, on the day such Net Proceeds are received (or, in the case of a
Prepayment Event described in clause (a) or (b) of the definition of the term “Prepayment
Event”, within three Business Days after such Net Proceeds are received), prepay Term
Borrowings in an aggregate amount equal to 100% of the amount of such Net Proceeds (or, if
the Borrower or any of its Restricted Subsidiaries has incurred Indebtedness that is permitted
under Section 6.01 that is secured, on an equal and ratable basis with the Term Loans, by a
Lien on the Collateral permitted under Section 6.02, and such Indebtedness is required to be
prepaid or redeemed with the net proceeds of any event described in clause (a) or (b) of the
definition of the term “Prepayment Event”, then by such lesser percentage of such Net
Proceeds such that such Indebtedness receives no greater than a ratable percentage of such
Net Proceeds based upon the aggregate principal amount of the Term Loans and such
Indebtedness then outstanding); provided that, in the case of any event described in clause (a)
or (b) of the definition of the term “Prepayment Event”, if the Borrower shall, prior to the
date of the required prepayment, deliver to the Administrative Agent a certificate of a
Financial Officer to the effect that the Borrower intends to cause the Net Proceeds from such
event (or a portion thereof specified in such certificate) to be applied within 360 days after
receipt of such Net Proceeds to acquire real property, equipment or other assets to be used in
the business of Holdings, the Borrower or their Restricted Subsidiaries or to enter into an
acquisition permitted by this Agreement and certifying that no Default has occurred and is
continuing, then no prepayment shall be required pursuant to this paragraph in respect of the
Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such
certificate, if applicable) except to the extent of any such Net Proceeds that have not been so
applied by the end of such 360-day period (or within a period of 180 days thereafter if by the
end of such initial 360-day period the Borrower or one or more Restricted Subsidiaries shall
have entered into a binding agreement with a third party to acquire such real property,
equipment or other assets or to make an acquisition permitted by this Agreement), at which
time a prepayment shall be required in an amount equal to such Net Proceeds that have not
been so applied.
(d) [Reserved].
(e) Prior to any optional or mandatory prepayment of Borrowings under this
Section, the Borrower shall, subject to the next sentence, select the Borrowing or Borrowings
to be prepaid and shall specify such selection in the notice of such prepayment delivered
pursuant to paragraph (f) of this Section. In the event of any mandatory prepayment of Term
Borrowings made at a time when Term Borrowings of more than one Class remain
outstanding, the Borrower shall select Term Borrowings to be prepaid so that the aggregate
amount of such prepayment is allocated between Tranche A Term Borrowings and, to the
extent provided in the Incremental Facility Amendment for any Class of Incremental Term
Loans, the Borrowings of such Class pro rata based on the aggregate principal amount of
outstanding Borrowings of each such Class; provided that any Term Lender (and, to the
extent provided in the Incremental Facility Amendment for any Class of Incremental Term
Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to
the Administrative Agent by telephone (confirmed by hand delivery, facsimile or other
electronic imaging) at least one Business Day prior to the required prepayment date, to
decline all or any portion of any prepayment of its Loans pursuant to this Section (other than
(x) an optional prepayment pursuant to paragraph (a) of this Section or (y) a mandatory
prepayment triggered by an event described in clause (a) of the definition of the term
“Prepayment Event”, neither of which may be declined), in which case the aggregate amount
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of the prepayment that would have been applied to prepay such Loans may be retained by the
Borrower.
(f) The Borrower shall notify the Administrative Agent (and, in the case of
prepayment of Swingline Loans, the Swingline Lenders) by telephone (confirmed by hand
delivery, facsimile or other electronic imaging) of any optional prepayment and, to the extent
practicable, any mandatory prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Borrowing or EURIBOR Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date
of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable
and shall specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that (A) if a notice of optional
prepayment is given in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.08, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with Section 2.08 and (B) a
notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state
that such notice is conditioned upon the occurrence of one or more events specified therein,
in which case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified date of prepayment) if such condition is not satisfied.
Promptly following receipt of any such notice (other than a notice relating solely to
Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class
of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included
in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13.
(g) Notwithstanding any other provisions of this Section 2.11, to the extent
any or all of the Net Proceeds of any event described in clause (a) or (b) of the definition of
the term “Prepayment Event” by a Foreign Subsidiary (“Foreign Subsidiary Disposition”) are
prohibited or delayed by any applicable local law (including financial assistance, corporate
benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties
of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for
the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has
determined in good faith that repatriation of any such amount to the Borrower or any
applicable Domestic Subsidiary would have material adverse tax consequences to the
Borrower and its Subsidiaries (taken as a whole) with respect to such amount, the portion of
such Net Proceeds so affected will not be required to be applied to prepay the Term Loans at
the times provided in this Section 2.11 but may be retained by the applicable Foreign
Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or
the passing on to or otherwise using for the benefit of the Borrower or the applicable
Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax
consequence would result, and once such repatriation of any of such affected Net Proceeds is
permitted under the applicable local law or the Borrower determines in good faith such
repatriation would no longer would have such material adverse tax consequences, such
repatriation will be promptly effected and such repatriated Net Proceeds will be promptly
(and in any event not later than five Business Days after such repatriation) applied (net of
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additional taxes payable or reasonably estimated to be payable as a result thereof) to the
prepayment of the Term Loans pursuant to this Section 2.11 (provided that no such
prepayment of the Term Loans pursuant to this Section 2.11 shall be required in the case of
any such Net Proceeds the repatriation of which the Borrower believes in good faith would
result in material adverse tax consequences, if on or before the date on which such Net
Proceeds so retained would otherwise have been required to be applied to reinvestments or
prepayments pursuant to this Section 2.11, (x) the Borrower applies an amount equal to the
amount of such Net Proceeds to such reinvestments or prepayments as if such Net Proceeds
had been received by the Borrower rather than such Foreign Subsidiary, less the amount of
additional taxes that would have been payable or reserved against if such Net Proceeds had
been repatriated (or, if less, the Net Proceeds that would be calculated if received by such
Foreign Subsidiary) or (y) such Net Proceeds are applied to the repayment of Indebtedness of
a Foreign Subsidiary).
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Lender for the period from and including the
Restatement Effective Date to but excluding the date on which the Revolving Commitments
terminate (or are otherwise reduced to zero), a commitment fee which shall accrue at the
Applicable Rate on the average daily unused amount of the aggregate Revolving Commitment of
such Revolving Lender. Such accrued commitment fees shall be payable in arrears on the last
Business Day of March, June, September and December of each year and on the date on which all
the Revolving Commitments terminate, commencing on the first such date to occur after the
Restatement Effective Date. For purposes of computing commitment fees, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate then used to determine the
interest rate applicable to Eurocurrency Revolving Loans on the average daily amount of such
Lender’s aggregate LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Restatement Effective Date to
but excluding the later of the date on which all of such Lender’s Revolving Commitments
terminate and the date on which such Lender ceases to have any LC Exposure and (ii) to each
Issuing Bank a fronting fee, which shall accrue at a rate per annum equal to 0.125% on the
average daily amount of the LC Exposure attributable to Letters of Credit issued by such
Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Restatement Effective Date to but excluding the
later of the date of termination of all the Revolving Commitments and the date on which there
ceases to be any such LC Exposure, as well as such Issuing Bank’s standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and including the
last day of March, June, September and December of each year shall be payable on the third
Business Day following such last day, commencing on the first such date to occur after the
Restatement Effective Date; provided that all such fees shall be payable on the date on which
all the Revolving Commitments terminate and any such fees accruing after the date on which
all the Revolving Commitments terminate shall be payable on demand. Any other fees
payable to an Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand.
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(c) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(d) [Reserved].
(e) [Reserved].
(f) All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case of
fees payable to it) for distribution, in the case of commitment fees and participation fees, to
the Revolving Lenders entitled thereto. Fees paid hereunder shall not be refundable under any
circumstances.
(g) All commitment fees, participation fees and fronting fees payable
pursuant to this Section 2.12 shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b) The Loans comprising (i) each Eurocurrency Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate and (ii) each EURIBOR Borrowing shall bear interest at the Adjusted
EURIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2.00% per annum plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other
overdue amount, 2.00% per annum plus the rate applicable to ABR Revolving Loans as
provided in paragraph (a) of this Section. Payment or acceptance of the increased rates of
interest provided for in this paragraph (c) is not a permitted alternative to timely payment and
shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights
or remedies of the Administrative Agent, any Issuing Bank or any Lender.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of a Revolving Loan, upon termination
of the Revolving Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of a Eurocurrency Loan or EURIBOR Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective date of such
conversion.
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(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that (i) interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate and (ii) interest computed with respect to
any Borrowing denominated in Pounds Sterling, in each case shall be computed on the basis
of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last day; provided
that, if a Loan, or a portion thereof, is repaid on the same day on which such Loan is made,
one day’s interest shall accrue on the portion of such Loan so prepaid). The applicable
Alternate Base Rate, Adjusted LIBO Rate or Adjusted EURIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. (a) If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing or EURIBOR Borrowing of any Class:
(i) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate or Adjusted EURIBO Rate, as the case may be
(including because the LIBO Screen Rate or the EURIBO Screen Rate, as applicable, is
not available or published on a current basis), for such Interest Period; or
(ii) the Administrative Agent is advised by a Majority in Interest of the Lenders
of such Class that the Adjusted LIBO Rate or Adjusted EURIBO Rate, as the case may
be, for such Interest Period will not adequately and fairly reflect the cost to such Lenders
of making or maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders of such
Class by telephone, facsimile or other electronic imaging as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders of such Class that the
circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing of such Class to, or continuation of any Borrowing of
such Class as, a Eurocurrency Borrowing or EURIBOR Borrowing, as the case may be, shall be
ineffective, (ii) any affected Eurodollar Borrowing or EURIBOR Borrowing that is requested to
be continued shall (A) if denominated in dollars, be continued as an ABR Borrowing or (B)
otherwise, be repaid on the last day of the then current Interest Period applicable thereto and (iii)
any Borrowing Request for an affected Eurodollar Borrowing or EURIBOR Borrowing shall (A)
in the case of a Borrowing denominated in dollars, be deemed a request for an ABR Borrowing or
(B) in all other cases, be ineffective (and no Lender shall be obligated to make a Loan on account
thereof).
(b) If at any time the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i)
of this Section have arisen and such circumstances are unlikely to be temporary or (ii) the
circumstances set forth in clause (a)(i) of this Section have not arisen but the supervisor for
the administrator of the LIBO Screen Rate or the EURIBO Screen Rate or a Governmental
Authority having jurisdiction over the Administrative Agent has made a public statement
identifying a specific date after which the LIBO Screen Rate or the EURIBO Screen Rate
shall no longer be used for determining interest rates for loans, then the Administrative Agent
and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate or
the EURIBO Rate, as applicable, that gives due consideration to the then prevailing market
convention for determining a rate of interest for syndicated loans in the United States at such
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time and shall enter into an amendment to this Agreement to reflect such alternate rate of
interest and such other related changes to this Agreement as may be applicable (but for the
avoidance of doubt, such related changes shall not include a reduction of the Applicable
Rate). Notwithstanding anything to the contrary in Section 9.02, such amendment shall
become effective without any further action or consent of any other party to this Agreement
so long as the Administrative Agent shall not have received, within five Business Days of the
date notice of such alternate rate of interest is provided to the Lenders, a written notice from a
Majority in Interest of the Lenders of each Class stating that such Lenders object to such
amendment. Until an alternate rate of interest shall be determined in accordance with this
Section 2.14(b) (but, in the case of the circumstances described in clause (ii) of the first
sentence of this Section 2.14(b), only to the extent the LIBO Screen Rate or the EURIBO
Screen Rate, as applicable, for the applicable currency and such Interest Period is not
available or published at such time on a current basis), (x) any Interest Election Request that
requests the conversion of any Revolving Borrowing to, or continuation of any Revolving
Borrowing as, a Eurodollar Borrowing shall be ineffective and (y) if any Borrowing Request
requests (1) a Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR
Borrowing or (2) a EURIBOR Revolving Borrowing, such Borrowing Request shall be
ineffective; provided that, if such alternate rate of interest shall be less than zero, such rate
shall be deemed to be zero for the purposes of this Agreement.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the
account of, or credit extended or participated in by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate or the Adjusted EURIBO Rate) or any
Issuing Bank;
(ii) impose on any Lender or any Issuing Bank or the London interbank market
any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans
made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes and
(B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender, such Issuing Bank or
such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the
amount of any sum received or receivable by such Lender, such Issuing Bank or such other
Recipient hereunder (whether of principal, interest or otherwise), then, from time to time upon
request of such Lender, such Issuing Bank or such other Recipient, the Borrower will pay to such
Lender, such Issuing Bank or such other Recipient, as applicable, such additional amount or
amounts as will compensate such Lender, such Issuing Bank or such other Recipient, as
applicable, for such additional costs or expenses incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law
regarding capital or liquidity requirements has had or would have the effect of reducing the
rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such
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Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank,
to a level below that which such Lender or such Issuing Bank or such Lender’s or such
Issuing Bank’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or such Issuing Bank’s policies and the policies of such
Lender’s or such Issuing Bank’s holding company with respect to capital adequacy or
liquidity requirements), then, from time to time upon the request of such Lender or such
Issuing Bank, the Borrower will pay to such Lender or such Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or such Issuing Bank or such
Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable
detail the amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as applicable, as specified in paragraph (a) or (b) of this Section and the
calculation thereof shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender or such Issuing Bank, as applicable, the amount
shown as due on any such certificate within 30 days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s
or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall
not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any
increased costs or expenses incurred or reductions suffered more than 180 days prior to the
date that such Lender or such Issuing Bank, as applicable, notifies the Borrower of the
Change in Law giving rise to such increased costs or expenses or reductions and of such
Lender’s or such Issuing Bank’s intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or expenses or reductions is
retroactive, then the 180-day period referred to above shall be extended to include the period
of retroactive effect thereof.
(e) Notwithstanding any other provision of this Section, no Lender shall
demand compensation for any increased cost or reduction pursuant to this Section in respect
of any Change in Law described in the proviso to the definition of the term “Change in Law”
unless such Lender has certified in writing to the Borrower that it is the general policy or
practice of such Lender to demand such compensation in similar circumstances from
similarly-situated borrowers.
(f) If any Lender reasonably determines that any Change in Law has made it
unlawful, or that any Governmental Authority has asserted after the Restatement Effective
Date that it is unlawful, for any Lender or its applicable lending office to make or maintain
any Eurocurrency Loan or EURIBOR Loan, then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, any obligations of such Lender to make or
continue Eurocurrency Loans or EURIBOR Loans or to convert ABR Borrowings into
Eurocurrency Borrowings, as the case may be, shall be suspended until such Lender notifies
the Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist (and each Lender agrees to give such notify promptly after such
circumstance no longer exist). Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), (i) with respect to Eurocurrency
Loans of such Lender denominated in dollars, convert all such Eurocurrency Loans of such
Lender to ABR Loans, on the last of the Interest Period therefor, if such Lender may lawfully
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continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may
not lawfully continue to maintain such Loans and (ii) with respect to Eurocurrency Loans of
such Lender denominated in a Permitted Foreign Currency and EURIBOR Loans of such
Lender, prepay all such Eurocurrency Loans and/or EURIBOR Loans of such Lender, on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Loans. Upon any such prepayment or conversion, the Borrower shall also pay
to the applicable Lender accrued interest on the amount of the applicable Loans so prepaid or
converted.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan or EURIBOR Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion
of any Eurocurrency Loan or EURIBOR Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan
or EURIBOR Loan on the date specified in any notice delivered pursuant hereto (whether or not
such notice may be revoked in accordance with the terms hereof) or (d) the assignment of any
Eurocurrency Loan or EURIBOR 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(b) or 9.02(c), then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable
to such event. In the case of a Eurocurrency Loan or EURIBOR Loan, such loss, cost or expense
to any Lender shall be deemed to include an amount determined by such Lender to be the excess,
if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate or Adjusted EURIBO Rate, as the case
may be, that would have been applicable to such Loan (but not including the Applicable Rate
applicable thereto), for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of interest that
would accrue on such principal amount for such period at the interest rate that such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the London interbank market. 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, and showing the calculation thereof, shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 30 days after receipt thereof.
SECTION 2.17. Taxes. (a) Payment Free of Taxes. Any and all payments by
or on account of any obligation of any Loan Party under this Agreement or any other Loan
Document shall be made without deduction or withholding for any Taxes, except as required by
applicable law. If any applicable law (as determined in the good faith discretion of an applicable
Withholding Agent) requires the deduction or withholding of any Tax from any such payment by
a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such
deduction or withholding and shall timely pay the full amount deducted or withheld to the
relevant Governmental Authority in accordance with applicable law and, if such Tax is an
Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as
necessary so that after such deduction or withholding of such Indemnified Tax has been made
(including such deductions and withholdings of Indemnified Taxes applicable to additional sums
payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it
would have received had no such deduction or withholding been made.
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(b) Payment of Other Taxes by the Loan Parties. The Loan Parties shall
timely pay to the relevant Governmental Authority in accordance with applicable law, or at
the option of the Administrative Agent timely reimburse it for, any Other Taxes.
(c) Evidence of Payment. 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 certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(d) Indemnification by the Loan Parties. The Loan Parties shall jointly and
severally indemnify each Recipient, within 10 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, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify
the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified
Taxes attributable to such Lender (but only to the extent that any Loan Party has not already
indemnified the Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to
comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant
Register and (iii) any Excluded Taxes attributable to such Lender, in each case that are
payable or paid by the Administrative Agent in connection with this Agreement or any other
Loan Document and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender under this Agreement or any other Loan
Document or otherwise payable by the Administrative Agent to such Lender from any other
source against any amount due to the Administrative Agent under this paragraph.
(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from,
or reduction of, withholding Tax with respect to payments made under this Agreement or any
other Loan Document shall deliver to the Borrower and the Administrative Agent, at the time
or times reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation reasonably requested by the Borrower or the
Administrative Agent as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if 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. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and
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submission of such documentation (other than such documentation set forth in
Section 2.17(f)(ii)(A), 2.17(f)(ii)(B) or 2.17(f)(ii)(D)) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
(ii) Without limiting the generality of the foregoing:
(A) any Lender that is a U.S. Person shall 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), executed
originals 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 entitled 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), 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 of America is a party
(x) with respect to payments of interest under this Agreement or any
other Loan Document, executed originals of IRS Form W-8BEN or IRS
Form W-8BEN-E (or any applicable successor thereto) establishing an
exemption from, or reduction of, U.S. Federal withholding Tax pursuant
to the “interest” article of such tax treaty and (y) with respect to any
other applicable payments under this Agreement or any other Loan
Document, IRS Form W-8BEN or IRS Form W-8BEN-E (or any
applicable successor thereto) establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
(2) executed originals 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 I-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 871(h)(3)(B) of the Code or a
“controlled foreign corporation” related to the Borrower as described in
Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”)
and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-
E (or any applicable successor thereto); or
(4) to the extent a Foreign Lender is not the beneficial owner,
executed originals of IRS Form W-8IMY, accompanied by IRS Form W-
8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E (or any applicable
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successor thereto), a U.S. Tax Compliance Certificate substantially in the
form of Exhibit I-2 or Exhibit I-3, IRS Form W-9 and/or another
certification document from each beneficial owner, as applicable;
provided that if the Foreign Lender is a partnership and one or more
direct or indirect partners of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a U.S.
Tax Compliance Certificate substantially in the form of Exhibit I-4 on
behalf of each such direct or indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled 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 originals of any other form prescribed by applicable law as a
basis for claiming exemption from, or a reduction in, U.S. Federal withholding
Tax, duly completed, together with such supplementary documentation as may be
prescribed by applicable law to permit 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 this Agreement or any other
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 that such Lender has complied with
such Lender’s obligations under FATCA or to determine the amount to deduct
and withhold from such payment. Solely for purposes of this clause (D),
“FATCA” shall include any amendments made to FATCA after the Restatement
Effective Date.
Each Lender agrees that if any form or certification it previously delivered
expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification
or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to
do so.
(g) Treatment of Certain Refunds. If any party 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 paid pursuant to this Section 2.17), it shall pay to the indemnifying 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 indemnified party and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such
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indemnified party the amount paid over pursuant to this paragraph (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in the event that
such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this paragraph, in no event will any indemnified
party be required to pay any amount to any indemnifying party pursuant to this paragraph the
payment of which would place such indemnified party in a less favorable net after-Tax
position than such indemnified party would have been in if 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 paragraph shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the indemnifying party or any other Person.
(h) Each party’s obligations under this Section 2.17 shall survive the
resignation or replacement of the Administrative Agent or any assignment or designation 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.
(i) For purposes of this Section 2.17, the term “Lender” includes any Issuing
Bank and the term “applicable law” includes FATCA.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
(a) The Borrower shall make each payment required to be made by it hereunder or under any
other Loan Document (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the
time expressly required hereunder or under such other Loan Document for such payment (or, if
no such time is expressly required, prior to 1:00 p.m., New York City time), on the date when
due, in immediately available funds, without any defense, setoff, recoupment or counterclaim.
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 to such account or accounts as may
be specified by the Administrative Agent, except that payments required to be made directly to
any Issuing Bank or the Swingline Lender shall be so made, payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant
to other Loan Documents shall be made to the Persons specified therein. The Administrative
Agent shall distribute any such payment received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under this Agreement or
any other Loan Document 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. All payments
hereunder of principal or interest in respect of any Loan or LC Disbursement shall, except as
otherwise expressly provided herein, be made in the currency of such Loan or LC Disbursement;
all other payments hereunder and under each other Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and unreimbursed LC Disbursements
then due to such parties.
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(c) If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Revolving
Loans, Term Loans or participations in LC Disbursements or Swingline Loans resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans
and accrued interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall notify the Administrative Agent of such fact
and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans of other Lenders to the extent
necessary so that the aggregate amount of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of and accrued interest on their
respective Revolving Loans, Term Loans and participations in LC Disbursements and
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 LC Disbursements to any Eligible Assignee, to the
Borrower or any Subsidiary or other Affiliate thereof in a transaction that complies with the
terms of Section 9.04(e). 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.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the Issuing Banks hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption and in its sole
discretion, distribute to the Lenders or the Issuing Banks, as applicable, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the Lenders or
the Issuing Banks, as applicable, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or such Issuing Bank 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 NYFRB
Rate and a rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(a) or (b), 2.17(e), 2.18(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof),
(i) apply any amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender’s obligations in respect of such payment until all such
unsatisfied obligations have been discharged and/or (ii) hold any such amounts in a
segregated account as cash collateral for, and application to, any future funding obligations of
such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any
order as determined by the Administrative Agent in its discretion.
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(f) In the event that any financial statements delivered under Section 5.01(a)
or 5.01(b), or any compliance certificate delivered under Section 5.01(c), shall prove to have
been materially inaccurate, and such inaccuracy shall have resulted in the payment of any
interest or fees at rates lower than those that were in fact applicable for any period (based on
the actual Total Leverage Ratio), then the Borrower shall pay to the Administrative Agent,
for distribution to the Lenders and the Issuing Banks (or former Lenders and Issuing Banks)
as their interests may appear, the accrued interest or fees that should have been paid but were
not paid as a result of such misstatement.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15, or if any Loan Party is required to pay any
Indemnified Taxes or additional amounts to any Lender or to any Governmental Authority for the
account of any Lender pursuant to Section 2.17, then such Lender shall (at the request of the
Borrower) use commercially reasonable efforts to designate a different lending office for funding
or booking its Loans hereunder or to assign and delegate its rights and obligations hereunder to
another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation
or assignment and delegation (i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as applicable, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not be inconsistent with its internal policies or otherwise
be disadvantageous to such Lender in any material respect. 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 and delegation.
(b) If (i) any Lender has requested compensation under Section 2.15, (ii) 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, (iii) any
Lender has become a Defaulting Lender or (iv) any Lender has become a Declining Lender
under Section 2.22, 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 (or, in the case of any
such assignment and delegation resulting from a Lender having become a Declining Lender,
all its interests, rights and obligations under this Agreement and the other Loan Documents as
a Lender of the applicable Class with respect to which such Lender is a Declining Lender) to
an Eligible Assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment and delegation); provided that (A) the Borrower
shall have received the prior written consent of the Administrative Agent (and, if a Revolving
Commitment is being assigned, each Issuing Bank and the Swingline Lender), which consent
shall not unreasonably be withheld or delayed, (B) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder (if applicable, in each case only to the extent such amounts
relate to its interest as a Lender of a particular Class) from the assignee (in the case of such
principal and accrued interest and fees) or the Borrower (in the case of all other amounts),
(C) the Borrower or such assignee shall have paid to the Administrative Agent the processing
and recordation fee specified in Section 9.04(b), (D) in the case of any such assignment and
delegation resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a material reduction in
such compensation or payments and (E) such assignment does not conflict with applicable
law. A Lender shall not be required to make any such assignment and delegation if, prior
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thereto, as a result of a waiver or consent by such Lender or otherwise (including as a result
of any action taken by such Lender under paragraph (a) above), the circumstances entitling
the Borrower to require such assignment and delegation have ceased to apply.
SECTION 2.20. Defaulting Lenders. Notwithstanding any provision of this
Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the
following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the
Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting
Lender shall not be included in determining whether the Required Lenders or any other
requisite Lenders have taken or may take any action hereunder or under any other Loan
Document (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 affected thereby shall, except as otherwise provided in
Section 9.02, require the consent of such Defaulting Lender in accordance with the terms
hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a
Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof
with respect to which such Defaulting Lender shall have funded its participation as
contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred
to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof
attributable to unreimbursed LC Disbursements with respect to which such Defaulting
Lender shall have funded its participation as contemplated by Sections 2.05(e) and
2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting
Revolving Lenders in accordance with their respective Applicable Percentages but only
to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving
Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not
exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments;
provided that no reallocation under this clause (i) shall constitute a waiver or release of
any claim of any party hereunder against a Defaulting Lender arising from that Lender
having become a Defaulting Lender, including any claim of a Non-Defaulting Revolving
Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure
following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one Business Day following notice by the
Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline
Exposure that has not been reallocated and (B) second, cash collateralize for the benefit
of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not
been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long
as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s
LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay
participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to
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such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting
Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated
pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections
2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without
prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder,
all participation fees payable under Section 2.12(b) with respect to such Defaulting
Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them
ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to
Letters of Credit issued by each Issuing Bank) until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline
Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be
required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is
satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline
Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the
definition of such term) or LC Exposure, as applicable, will be fully covered by the
Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral
provided by the Borrower in accordance with Section 2.20(c), and participating interests in
any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter
of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner
consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein).
In the event that the Administrative Agent, Holdings, the Borrower, each
Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has
adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting
Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders
shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment
and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the
other Revolving Lenders as the Administrative Agent shall determine may be necessary in order
for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable
Percentage; provided that no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Revolving Lender was a
Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected
parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender
will constitute a waiver or release of any claim of any party hereunder arising from such
Revolving Lender’s having been a Defaulting Lender.
SECTION 2.21. Incremental Extensions of Credit. (a) At any time and from
time to time, commencing on the Restatement Effective Date and ending on the Latest Maturity
Date (or, in the case of any Revolving Commitment Increase (as defined below), on the
Revolving Maturity Date), subject to the terms and conditions set forth herein, the Borrower may,
by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly
deliver a copy to each of the Lenders), request (i) to add one or more additional tranches of term
loans (the “Incremental Term Loans”), (ii) solely during the Revolving Availability Period, one
or more increases in the aggregate amount of the Revolving Commitments (each such increase, a
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“Revolving Commitment Increase” and, together with the Incremental Term Loans and any
Alternative Incremental Facility Debt, the “Incremental Extensions of Credit”) or (iii) to incur
Alternative Incremental Facility Debt, in an aggregate principal amount (for all Incremental
Extensions of Credit made, and all Alternate Incremental Facility Debt incurred, on and after the
Restatement Effective Date) of up to $100,000,000 (provided that, at any time, the sum of (x) the
aggregate principal amount of Incremental Extensions of Credit that have been made or incurred
since the Restatement Effective Date (assuming for this purpose that any Revolving Commitment
Increase has been fully drawn (provided that such amount need not actually be fully drawn as a
condition to such Incremental Extension of Credit)) and (y) the aggregate principal amount of
Indebtedness outstanding at such time under Section 6.01(u), shall not exceed $100,000,000 in
the aggregate); provided that, at the time of each such request and upon the effectiveness of each
Incremental Facility Amendment or the incurrence of such Alternative Incremental Facility Debt,
(A) no Default or Event of Default has occurred and is continuing or shall result therefrom
(provided that in the event the proceeds of any Incremental Extension of Credit are used to
finance any investment permitted hereunder, such condition precedent set forth in this clause (A)
may be waived or limited as agreed between the Borrower and the Lenders providing such
Incremental Extension of Credit, without the consent of any other Lenders), (B) the
representations and warranties of Holdings, the Borrower and each other Loan Party, as
applicable, set forth in the Loan Documents would be true and correct in all material respects (or,
in the case of representations and warranties qualified as to materiality, in all respects) on and as
of the date of, and immediately after giving effect to, the incurrence of such Incremental
Extension of Credit (provided that in the event the proceeds of any Incremental Extension of
Credit are used to finance any investment permitted hereunder, such condition precedent set forth
in this clause (B) may be waived or limited as agreed between the Borrower and the Lenders
providing such Incremental Extension of Credit, without the consent of any other Lenders), (C)
after giving effect to such Incremental Extension of Credit and the application of the proceeds
therefrom (and assuming that the full amount of such Incremental Extension of Credit shall have
been funded on such date), Holdings shall be in compliance on a Pro Forma Basis with the
covenants set forth in Sections 6.12 and 6.13 recomputed as of the last day of the most recently
ended fiscal quarter of the Borrower (provided that in the event the proceeds of any Incremental
Extension of Credit are used to finance any investment permitted hereunder, such condition
precedent set forth in this clause (C) shall be required to be satisfied as of the date on which the
binding agreement for such investment is entered into rather than the date of effectiveness of the
applicable Incremental Extension of Credit) and (D) the Borrower shall have delivered a
certificate of a Financial Officer to the effect set forth in the clauses (A), (B) and (C) above,
together with reasonably detailed calculations demonstrating compliance with clause (C) above
(which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for
which the Borrower has not delivered to the Administrative Agent the financial statements and
certificate of a Financial Officer required to be delivered by Section 5.01(a) or 5.01(b) and
Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of
Consolidated EBITDA for the relevant period). Each Class of Incremental Term Loans and each
Revolving Commitment Increase shall be in an integral multiple of $1,000,000 and be in an
aggregate principal amount that is not less than $10,000,000; provided that such amount may be
less than $10,000,000 if such amount represents all the remaining availability under the aggregate
principal amount of Incremental Extensions of Credit set forth above.
(b) The Incremental Term Loans (i) shall rank pari passu or junior in right of
payment in respect of the Collateral and with the Obligations in respect of the Revolving
Commitments and the Tranche A Term Loans, (ii) for purposes of prepayments, shall be
treated substantially the same as (and in any event no more favorably than) the Tranche A
Term Loans and (iii) other than amortization, pricing and maturity date, shall be on terms that
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are identical to the terms with respect to the Tranche A Term Loans and shall be made on
conditions determined by the Borrower and the Lenders providing such Incremental Term
Loans; provided that (A) if the Weighted Average Yield relating to any Incremental Term
Loans exceeds the Weighted Average Yield relating to the Tranche A Term Loans (after
giving effect to any amendments to the applicable margin on the Tranche A Term Loans prior
to the time that such Incremental Term Loans are made) immediately prior to the
effectiveness of the applicable Incremental Facility Amendment, then the Applicable Rate
relating to the Tranche A Term Loans shall be adjusted so that the Weighted Average Yield
relating to such Incremental Term Loans shall not exceed the Weighted Average Yield
relating to the Tranche A Term Loans; provided that (x) the requirements of this clause (A)
shall not apply to any Incremental Term Loan the maturity date of which is at least two years
after the Tranche A Term Maturity Date and (y) if the Adjusted LIBO Rate or the Adjusted
EURIBO Rate in respect of the Tranche A Term Loans or such Incremental Term Loans
includes an interest rate “floor”, then such interest rate “floor”, to the extent greater than the
Adjusted LIBO Rate or the Adjusted EURIBO Rate (in each case, assuming a three-month
Interest Period and without giving effect to any interest rate “floor” set forth in the definition
thereof) immediately prior to the effectiveness of the applicable Incremental Facility
Amendment, shall be equated to interest margin (calculated by the Administrative Agent in
accordance with its customary practice) for purposes of determining whether an increase to
the Applicable Rate relating to the Tranche A Term Loans shall be required, (B) any
Incremental Term Loan shall not have (1) a final maturity date earlier than the Tranche A
Term Maturity Date or (2) a weighted average life to maturity that is shorter than the
remaining weighted average life to maturity of the then-remaining Tranche A Term Loans
and (C) one or more additional financial maintenance covenants may be added to this
Agreement for the benefit of any Incremental Term Loans so long as such financial
maintenance covenants are for the benefit of all other Lenders in respect of all Loans and
Commitments outstanding at the time that the applicable Incremental Facility Amendment
becomes effective.
(c) Each notice from the Borrower pursuant to this Section shall set forth the
requested amount and proposed terms of the relevant Incremental Extension of Credit. Any
additional bank, financial institution, existing Lender or other Person that elects to extend
commitments in respect of any Incremental Term Loans or Revolving Commitment Increase
shall be reasonably satisfactory to the Borrower and the Administrative Agent (and, in the
case of any Revolving Commitment Increase, each Issuing Bank and each Swingline Lender)
(any such bank, financial institution, existing Lender or other Person being called an
“Additional Lender”) and, if not already a Lender, shall become a Lender under this
Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this
Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the
Borrower, such Additional Lender and the Administrative Agent. No Lender shall be
obligated to provide any Incremental Extension of Credit unless it so agrees. Commitments
in respect of any Incremental Term Loans or Revolving Commitment Increase shall become
Commitments (or in the case of any Revolving Commitment Increase to be provided by an
existing Revolving Lender, an increase in such Lender’s Revolving Commitment) under this
Agreement upon the effectiveness of the applicable Incremental Facility Amendment. An
Incremental Facility Amendment may, without the consent of any other Lenders, effect such
amendments to this Agreement or to any other Loan Document as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the provisions of this
Section (including to provide for voting provisions applicable to the Additional Lenders
comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)).
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(d) On the date of effectiveness of any Revolving Commitment Increase, (i)
the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving
Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase
shall be deemed to be repaid, (ii) each Revolving Commitment Increase Lender that shall
have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment
Increase shall pay to the Administrative Agent in same day funds an amount equal to the
amount, if any, by which (A) (1) such Revolving Commitment Increase Lender’s Applicable
Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment
Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving
Borrowings (as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase
Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such
Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the
Existing Revolving Borrowings, (iii) each Revolving Commitment Increase Lender that shall
not have had a Revolving Commitment prior to the effectiveness of such Revolving
Commitment Increase shall pay to Administrative Agent in same day funds an amount equal
to (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after
giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2)
the aggregate principal amount of the Resulting Revolving Borrowings, (iv) after the
Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the
Administrative Agent shall pay to each Revolving Lender the portion of such funds that is
equal to the amount, if any, by which (A) (1) such Revolving Lender’s Applicable Percentage
(calculated without giving effect to the effectiveness of such Revolving Commitment
Increase) multiplied by (2) the aggregate principal amount of the Existing Revolving
Borrowings, exceeds (B) (1) such Revolving Lender’s Applicable Percentage (calculated
after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied
by (2) the aggregate principal amount of the Resulting Revolving Borrowings, (v) after the
effectiveness of such Revolving Commitment Increase, the Borrower shall be deemed to have
made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate
principal amount equal to the aggregate principal amount of the Existing Revolving
Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request
delivered to the Administrative Agent in accordance with Section 2.03 (and the Borrower
shall deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold
its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving
effect to the effectiveness of such Revolving Commitment Increase) and (vii) the Borrower
shall pay each Revolving Lender any and all accrued but unpaid interest on its Loans
comprising the Existing Revolving Borrowings. The deemed payments of the Existing
Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by
the Borrower pursuant to the provisions of Section 2.16 if the date of the effectiveness of
such Revolving Commitment Increase occurs other than on the last day of the Interest Period
relating thereto. Upon each Revolving Commitment Increase pursuant to this Section, each
Revolving Lender immediately prior to such increase will automatically and without further
act be deemed to have assigned to each Revolving Commitment Increase Lender, and each
such Revolving Commitment Increase 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 and Swingline Loans such that, after giving effect to such
Revolving Commitment Increase and each such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding participations hereunder in Letters
of Credit and participations hereunder in Swingline Loans, in each case held by each
Revolving Lender (including each such Revolving Commitment Increase Lender) will equal
such Revolving Lender’s Applicable Percentage. Each Revolving Commitment Increase
shall be on the same terms as are applicable to the Revolving Loans; provided that (A) the
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Borrower may increase the Applicable Rate applicable to the Revolving Loans and the
Revolving Commitments in connection with any Revolving Commitment Increase if, after
the effectiveness of the applicable Incremental Facility Amendment, such increased
Applicable Rate applies to all Revolving Loans and Revolving Commitments, (B) if the
Weighted Average Yield relating to the Revolving Commitments (and the Revolving Loans
made thereunder) in respect of any Revolving Commitment Increase exceeds the Weighted
Average Yield relating to the Revolving Loans and Revolving Commitments (after giving
effect to any amendments to the applicable margin on the Revolving Loans and the
Revolving Commitments prior to the time that such Revolving Commitment Increase
becomes effective) immediately prior to the effectiveness of the applicable Incremental
Facility Amendment, then the Borrower shall pay to the Revolving Lenders existing
immediately prior to the effectiveness of such Incremental Facility Amendment an additional
amount so that the Weighted Average Yield relating to the Revolving Commitments (and the
Revolving Loans to be made thereunder) in respect of such Revolving Commitment Increase
shall not exceed the Weighted Average Yield relating to the Revolving Loans and the
Revolving Commitments outstanding immediately prior to the effectiveness of such
Incremental Facility Amendment and (C) one or more additional financial maintenance
covenants may be added to this Agreement for the benefit of any Revolving Commitment
Increase so long as such financial maintenance covenants are for the benefit of all other
Lenders in respect of all Loans and Commitments outstanding at the time that the applicable
Incremental Facility Amendment becomes effective.
SECTION 2.22. Extension of Maturity Date. (a) The Borrower may, by
delivery of a Maturity Date Extension Request to the Administrative Agent (which shall promptly
deliver a copy thereof to each of the Lenders) not less than 30 days prior to the then-existing
Maturity Date for the applicable Class of Commitments and/or Loans hereunder to be extended
(the “Existing Maturity Date”), request that the Lenders extend the Existing Maturity Date in
accordance with this Section. Each Maturity Date Extension Request shall (i) specify the
applicable Class of Commitments and/or Loans hereunder to be extended, (ii) specify the date to
which the applicable Maturity Date is sought to be extended, (iii) specify the changes, if any, to
the Applicable Rate to be applied in determining the interest payable on the Loans of, and fees
payable hereunder to, Consenting Lenders (as defined below) in respect of that portion of their
Commitments and/or Loans extended to such new Maturity Date and the time as of which such
changes will become effective (which may be prior to the Existing Maturity Date) and (iv)
specify any other amendments or modifications to this Agreement to be effected in connection
with such Maturity Date Extension Request; provided that no such changes or modifications
requiring approvals pursuant to the provisos to Section 9.02(b) shall become effective prior to the
Existing Maturity Date unless such other approvals have been obtained. In the event a Maturity
Date Extension Request shall have been delivered by the Borrower, each Lender shall have the
right to agree to the extension of the Existing Maturity Date and other matters contemplated
thereby on the terms and subject to the conditions set forth therein (each Lender agreeing to the
Maturity Date Extension Request being referred to herein as a “Consenting Lender” and each
Lender not agreeing thereto being referred to herein as a “Declining Lender”), which right may be
exercised by written notice thereof, specifying the maximum amount of the Commitment and/or
Loans of such Lender with respect to which such Lender agrees to the extension of the Maturity
Date, delivered to the Borrower (with a copy to the Administrative Agent) not later than a day to
be agreed upon by the Borrower and the Administrative Agent following the date on which the
Maturity Date Extension Request shall have been delivered by the Borrower (it being understood
and agreed that any Lender that shall have failed to exercise such right as set forth above shall be
deemed to be a Declining Lender). If a Lender elects to extend only a portion of its then existing
Commitment and/or Loans, it will be deemed for purposes hereof to be a Consenting Lender in
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respect of such extended portion and a Declining Lender in respect of the remaining portion of its
Commitment and/or Loans, and the aggregate principal amount of each Type and currency of
Loans of the applicable Class of such Lender shall be allocated ratably among the extended and
non-extended portions of the Loans of such Lender based on the aggregate principal amount of
such Loans so extended and not extended. If Consenting Lenders shall have agreed to such
Maturity Date Extension Request in respect of Commitments and/or Loans held by them, then,
subject to paragraph (d) of this Section, on the date specified in the Maturity Date Extension
Request as the effective date thereof (the “Extension Effective Date”), (i) the Existing Maturity
Date of the applicable Commitments and/or Loans shall, as to the Consenting Lenders, be
extended to such date as shall be specified therein, (ii) the terms and conditions of the applicable
Commitments and/or Loans of the Consenting Lenders (including interest and fees (including
Letter of Credit fees) payable in respect thereof) shall be modified as set forth in the Maturity
Date Extension Request and (iii) such other modifications and amendments hereto specified in
the Maturity Date Extension Request shall (subject to any required approvals (including those of
the Required Lenders) having been obtained) become effective.
(b) Notwithstanding the foregoing, the Borrower shall have the right, in
accordance with the provisions of Sections 2.19(b) and 9.04, at any time prior to the Existing
Maturity Date, to replace a Declining Lender (for the avoidance of doubt, only in respect of
that portion of such Lender’s Commitment and/or Loans subject to a Maturity Date Extension
Request that it has not agreed to extend) with a Lender or other financial institution that will
agree to such Maturity Date Extension Request, and any such replacement Lender shall for all
purposes constitute a Consenting Lender in respect of the Commitment and/or Loans
assigned to and assumed by it on and after the effective time of such replacement.
(c) If a Maturity Date Extension Request has become effective hereunder:
(i) solely in respect of a Maturity Date Extension Request that has become
effective in respect of the Revolving Commitments, not later than the fifth Business Day
prior to the Existing Maturity Date, the Borrower shall make prepayments of Revolving
Loans and shall provide cash collateral in respect of Letters of Credit in the manner set
forth in Section 2.05(i), such that, after giving effect to such prepayments and such
provision of cash collateral, the Aggregate Revolving Exposure as of such date will not
exceed the aggregate Revolving Commitments of the Consenting Lenders extended
pursuant to this Section (and the Borrower shall not be permitted thereafter to request any
Revolving Loan or any issuance, amendment, renewal or extension of a Letter of Credit
if, after giving effect thereto, the Aggregate Revolving Exposure would exceed the
aggregate amount of the Revolving Commitments so extended);
(ii) solely in respect of a Maturity Date Extension Request that has become
effective in respect of the Revolving Commitments, on the Existing Maturity Date, the
Revolving Commitment of each Declining Lender shall, to the extent not assumed,
assigned or transferred as provided in paragraph (b) of this Section, terminate, and the
Borrower shall repay all the Revolving Loans of each Declining Lender, to the extent
such Loans shall not have been so purchased, assigned and transferred, in each case
together with accrued and unpaid interest and all fees and other amounts owing to such
Declining Lender hereunder, it being understood and agreed that, subject to satisfaction
of the conditions set forth in Section 4.03, such repayments may be funded with the
proceeds of new Revolving Borrowings made simultaneously with such repayments by
the Consenting Lenders, which such Revolving Borrowings shall be made ratably by the
Consenting Lenders in accordance with their extended Revolving Commitments; and
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(iii) solely in respect of a Maturity Date Extension Request that has become
effective in respect of a Class of Term Loans, on the Existing Maturity Date, the
Borrower shall repay all the Loans of such Class of each Declining Lender, to the extent
such Loans shall not have been so purchased, assigned and transferred, in each case
together with accrued and unpaid interest and all fees and other amounts owing to such
Declining Lender hereunder, it being understood and agreed that, subject to satisfaction
of the conditions set forth in Section 4.03, such repayments may be funded with the
proceeds of new Revolving Borrowings made simultaneously with such repayments by
the Revolving Lenders.
(d) Notwithstanding the foregoing, no Maturity Date Extension Request
shall become effective hereunder unless, on the Extension Effective Date, the conditions set
forth in clauses (a) and (b) of Section 4.03 shall be satisfied (with all references in such
Section to a Borrowing being deemed to be references to such Maturity Date Extension
Request) and the Administrative Agent shall have received a certificate to that effect dated
such date and executed by a Financial Officer of the Borrower.
(e) Notwithstanding any provision of this Agreement to the contrary, it is
hereby agreed that no extension of an Existing Maturity Date in accordance with the express
terms of this Section, or any amendment or modification of the terms and conditions of the
Commitments and the Loans of the Consenting Lenders effected pursuant thereto, shall be
deemed to (i) violate the last sentence of Section 2.08(c) or Section 2.18(b) or 2.18(c) or any
other provision of this Agreement requiring the ratable reduction of Commitments or the
ratable sharing of payments or (ii) require the consent of all Lenders or all affected Lenders
under Section 9.02(b).
(f) The Borrower, the Administrative Agent and the Consenting Lenders
may enter into an amendment to this Agreement to effect such modifications as may be
necessary to reflect the terms of any Maturity Date Extension Request that has become
effective in accordance with the provisions of this Section.
SECTION 2.23. Refinancing Facilities. (a) The Borrower may, on one or more
occasions, by written notice to the Administrative Agent, obtain Refinancing Term Loan
Indebtedness or Refinancing Revolving Commitments. Each such notice shall specify the date
(each, a “Refinancing Effective Date”) on which the Borrower proposes that such Refinancing
Term Loan Indebtedness shall be made or on which such Refinancing Revolving Commitments
shall become effective, which shall be a date not less than five Business Days after the date on
which such notice is delivered to the Administrative Agent; provided that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall
have occurred and be continuing;
(ii) substantially concurrently with the incurrence of any Refinancing Term Loan
Indebtedness, the Borrower shall repay or prepay then outstanding Term Borrowings of
the applicable Class (together with any accrued but unpaid interest thereon and any
prepayment premium with respect thereto) in an aggregate principal amount equal to the
Net Proceeds of such Refinancing Term Loan Indebtedness, and any such prepayment of
Term Borrowings of such Class shall be applied to reduce the subsequent scheduled
repayments of Term Borrowings of such Class to be made pursuant to Section 2.09(a)
ratably;
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(iii) substantially concurrently with the effectiveness of any Refinancing
Revolving Commitments, the Borrower shall reduce then outstanding Revolving
Commitments in an aggregate amount equal to the aggregate amount of such Refinancing
Revolving Commitments and shall make any prepayments of the outstanding Revolving
Loans required pursuant to Section 2.08 in connection with such reduction, and any such
reduction of the Revolving Commitments shall be made ratably among the Lenders in
accordance with their respective Revolving Commitments; and
(iv) such notice shall set forth, with respect to any Refinancing Term Loan
Indebtedness established thereby in the form of Refinancing Term Loans or with respect
to any Refinancing Revolving Commitments (and the Refinancing Revolving Loans of
the same Class), to the extent applicable, the following terms thereof: (A) the designation
of such Refinancing Term Loans or Refinancing Revolving Commitments and
Refinancing Revolving Loans, as applicable, as a new “Class” for all purposes hereof,
(B) the stated termination and maturity dates applicable to the Refinancing Term Loans
or Refinancing Revolving Commitments and Refinancing Revolving Loans, as
applicable, of such Class, (C) in the case of Refinancing Term Loans, amortization
applicable thereto and the effect thereon of any prepayment of such Refinancing Term
Loans, (D) the interest rate or rates applicable to the Refinancing Term Loans or
Refinancing Revolving Loans, as applicable, of such Class, (E) the fees applicable to the
Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing
Revolving Loans, as applicable, of such Class, (F) in the case of Refinancing Term
Loans, any original issue discount applicable thereto, (G) the initial Interest Period or
Interest Periods applicable to Refinancing Term Loans or Refinancing Revolving Loans,
as applicable, of such Class, (H) any voluntary or mandatory commitment reduction or
prepayment requirements applicable to Refinancing Term Loans or Refinancing
Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class
(which prepayment requirements, in the case of any Refinancing Term Loans, may
provide that such Refinancing Term Loans may participate in any mandatory prepayment
on a pro rata basis with any Class of existing Term Loans, but may not provide for
prepayment requirements that are materially more favorable to the Lenders holding such
Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any
restrictions on the voluntary or mandatory reductions or prepayments of Refinancing
Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans,
as applicable, of such Class and (I) any financial maintenance covenant with which
Holdings and the Borrower shall be required to comply (provided that any such financial
maintenance covenant for the benefit of any Class of Refinancing Lenders shall also be
for the benefit of all other Lenders in respect of all Loans and Commitments outstanding
at the time that the applicable Refinancing Facility Agreement becomes effective).
(b) Any Lender or any other Eligible Assignee approached by the Borrower
to provide all or a portion of the Refinancing Term Loan Indebtedness or the Refinancing
Revolving Commitments may elect or decline, in its sole discretion, to provide any
Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments, as the case
may be.
(c) Any Refinancing Term Loans and any Refinancing Revolving
Commitments shall be established pursuant to a Refinancing Facility Agreement executed
and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such
Refinancing Term Loans or each Refinancing Revolving Lender providing such Refinancing
Revolving Commitments, as the case may be, and the Administrative Agent, which shall be
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consistent with the provisions set forth in clause (a) above (but which shall not require the
consent of any other Lender). Each Refinancing Facility Agreement shall be binding on the
Lenders, the Loan Parties and the other parties hereto and may effect amendments to the
other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the
Administrative Agent and the Borrower, to effect provisions of this Section 2.23, including
any amendments necessary to treat such Refinancing Term Loans or Refinancing Revolving
Commitments (and the Refinancing Revolving Loans of the same Class) as a new “Class” of
commitments or loans hereunder. The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each Refinancing Facility Agreement.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower (with respect to itself and, where applicable,
its respective Subsidiaries) represents and warrants to the Administrative Agent, each of the
Issuing Banks and each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each Restricted Subsidiary (a) is duly organized, validly existing and, to the extent that such
concept is applicable in the relevant jurisdiction, in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority, and the legal right, to
carry on its business as now conducted and as proposed to be conducted, to execute, deliver and
perform its obligations under this Agreement and each other Loan Document and each other
agreement or instrument contemplated thereby to which it is a party and to effect the Transactions
and (c) except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and, to the extent
that such concept is applicable in the relevant jurisdiction, is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Due Execution and Delivery; Enforceability.
The execution, delivery and performance by each Loan Party of each Loan Document to which
such Person is a party have been duly authorized by all necessary corporate or other
organizational action and, if required, action by the holders of such Loan Party’s Equity Interests.
This Agreement has been duly executed and delivered by each of Holdings and the Borrower and
constitutes, and each other Loan Document to which any Loan Party is to be a party, when
executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation
of Holdings, the Borrower or such Loan Party, as applicable, enforceable against such Person in
accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law
and an implied covenant of good faith and fair dealing.
SECTION 3.03. Governmental Approvals; No Conflicts. The execution,
delivery and performance by each Loan Party of each Loan Document to which such Person is a
party (a) as of the date such Loan Document is executed, will not require any consent or approval
of, registration or filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except (i) filings necessary to
perfect Liens created under the Loan Documents, (ii) consents, approvals, registrations or filings
which have been obtained or made and are in full force and effect or (iii) where failure to obtain
such consent or approval, or make such registration or filing, in the aggregate, could not
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reasonably be expected to have a Material Adverse Effect, (b) will not violate any Requirement of
Law applicable to Holdings, the Borrower or any Restricted Subsidiary, (c) will not violate or
result (alone or with notice or lapse of time or both) in a default under any indenture, agreement
or other instrument binding upon Holdings, the Borrower or any Restricted Subsidiary or their
respective assets, or give rise to a right thereunder to require any payment, repurchase or
redemption to be made by Holdings, the Borrower or any Restricted Subsidiary or give rise to a
right of, or result in, termination, cancelation or acceleration of any obligation thereunder, except
with respect to any violation, default, payment, repurchase, redemption, termination, cancellation
or acceleration that would not reasonably be expected to have a Material Adverse Effect and
(d) will not result in the creation or imposition of any Lien on any asset now owned or hereafter
acquired by Holdings, the Borrower or any Restricted Subsidiary, except Liens created under the
Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Administrative Agent Holdings’ consolidated
balance sheets and the related consolidated statements of operations, shareholders’ equity and
cash flows (i) as of and for the fiscal years ended December 31, 2016, December 31, 2015 and
December 31, 2014, audited and reported on by Deloitte & Touche LLP, independent public
accountants (without a “going concern” or like qualification, exception or statement and without
any qualification or exception as to the scope of such audit) and (ii) as of and for the fiscal
quarters and portions of the fiscal year ended March 31, 2017, June 30, 2017 and September 29,
2017 (and comparable periods for the prior fiscal year) certified by a Financial Officer of
Holdings. Such financial statements present fairly, in all material respects, the financial position
and results of operations and cash flows of Holdings, the Borrower and the Subsidiaries on a
consolidated basis as of such dates and for such periods in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of certain footnotes in the
case of the statements referred to in clause (ii) above.
(b) [Reserved].
(c) No event, change or condition has occurred that has had, or would
reasonably be expected to have, a Material Adverse Effect since December 31, 2016.
SECTION 3.05. Properties. (a) Each of Holdings, the Borrower and each
Restricted Subsidiary has good title to, or valid leasehold interests in, all its property necessary
for the conduct of its business (including the Mortgaged Properties), except for minor defects in
title that do not interfere with its ability to conduct its business as currently conducted or as
proposed to be conducted or to utilize such properties for their intended purposes. All such
property is free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of Holdings, the Borrower and each Restricted Subsidiary owns, or
has secured the rights to use, all trademarks, trade names, copyrights, patents and other
intellectual property material to its business as currently conducted or as currently proposed
to be conducted, and the use thereof by Holdings, the Borrower and each Restricted
Subsidiary does not infringe upon the rights of any other Person, except, in each case, for any
such failures to own or have rights to use, or any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No
claim or litigation regarding any trademarks, trade names, copyrights, patents or other
intellectual property owned or used by Holdings, the Borrower or any Restricted Subsidiary
is pending or, to the knowledge of Holdings, the Borrower or any Restricted Subsidiary,
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threatened against Holdings, the Borrower or any Restricted Subsidiary that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(c) Neither any Mortgaged Property nor any interest therein is subject to any
right of first refusal, option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits, investigations or proceedings at law or in equity or by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of Holdings, the Borrower or any
Restricted Subsidiary and solely for purposes of the representations and warranties to be given on
the Restatement Effective Date, threatened against or affecting Holdings, the Borrower or any
Restricted Subsidiary or any business, property or rights (other than intellectual property rights,
which are addressed in Section 3.05(b)) of any such Person (i) that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve any of
the Loan Documents.
(b) Except with respect to any matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, none of Holdings, the
Borrower or any Restricted Subsidiary (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval required under
any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability, (iv) has any present
or, to the knowledge of Holdings, the Borrower or any Restricted Subsidiary, past operations
or properties subject to any federal, state or local investigation to determine whether any
remedial action is needed to address any environmental pollution, Hazardous Material
impacts or environmental clean-up, (v) has any contingent liability with respect to any
Release, environmental pollution or Hazardous Material impacts on any real property now or
previously owned, leased or operated by it or (vi) knows of any basis for any Environmental
Liability.
SECTION 3.07. Compliance with Laws. Each of Holdings, the Borrower and
each Restricted Subsidiary is in compliance with all Requirements of Law, except where the
failure to do so, individually or in the aggregate, would not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.08. Anti-Terrorism Laws; Anti Corruption Laws. Holdings and the
Borrower have implemented and maintain in effect policies and procedures designed to ensure
compliance by Holdings, the Borrower, the Subsidiaries and their respective directors, officers,
employees and agents with Anti-Corruption Laws and applicable Sanctions, and Holdings, the
Borrower, the Subsidiaries and their respective officers and employees, and, to the knowledge of
Holdings and the Borrower, their respective directors and agents, are in compliance with Anti-
Corruption Laws and applicable Sanctions in all material respects. None of (a) Holdings, the
Borrower, any Subsidiary or, to the knowledge of Holdings, the Borrower or such Subsidiary, any
of their respective directors, officers or employees or (b) to the knowledge of Holdings or the
Borrower, any agent of Holdings, the Borrower or any Subsidiary that will act in any capacity in
connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
The Transactions will not violate Anti-Corruption Laws or applicable Sanctions.
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SECTION 3.09. Investment Company Status. None of Holdings, the Borrower
or any Restricted Subsidiary is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act.
SECTION 3.10. Federal Reserve Regulations. None of Holdings, the Borrower
or any Restricted Subsidiary is engaged or will engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U of the Board of Governors) or extending credit for the purpose of purchasing or
carrying margin stock. No part of the proceeds of the Loans will be used, directly or indirectly,
for any purpose that entails a violation (including on the part of any Lender) of any of the
regulations of the Board of Governors, including Regulations U and X.
SECTION 3.11. Taxes. Except to the extent that failure to do so would not
reasonably be expected to result in a Material Adverse Effect, each of Holdings, the Borrower
and each Restricted Subsidiary (a) has timely filed or caused to be filed all Tax returns and
reports required to have been filed by it and (b) has paid or caused to be paid all Taxes required to
have been paid by it, except where the validity or amount thereof is being contested in good faith
by appropriate proceedings and where Holdings, the Borrower or such Restricted Subsidiary, as
applicable, has set aside on its books adequate reserves therefor in conformity with GAAP.
SECTION 3.12. ERISA. Except as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, (a) no ERISA Event has
occurred or is reasonably expected to occur and (b) the present value of all accumulated benefits
obligations under each Plan (based on the assumptions used for purposes of Accounting
Standards Codification Topic 715) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of such Plan.
SECTION 3.13. Disclosure. None of the reports, financial statements,
certificates or other written information furnished by or on behalf of Holdings, the Borrower or
any Restricted Subsidiary to the Arrangers, the Administrative Agent, any Issuing Bank or any
Lender on or before the Restatement Effective Date in connection with the negotiation of this
Agreement or any other Loan Document, included herein or therein or furnished hereunder or
thereunder (as modified or supplemented by other information so furnished and taken as a whole)
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
materially misleading; provided that, with respect to projected financial information, each of
Holdings and the Borrower represents only that such information was prepared in good faith
based upon assumptions believed by it to be reasonable at the time so furnished and, if such
projected financial information was furnished prior to the Restatement Effective Date, as of the
Restatement Effective Date (it being understood and agreed that any such projected financial
information may vary from actual results and that such variations may be material).
SECTION 3.14. Subsidiaries. As of the Restatement Effective Date, Holdings
does not have any subsidiaries other than the Borrower and the Subsidiaries. As of the
Restatement Effective Date, Schedule 3.14 sets forth the name of, and the ownership interest of
Holdings, the Borrower and each Subsidiary in, each Subsidiary and identifies each Subsidiary
that is a Subsidiary Loan Party, in each case as of the Restatement Effective Date. As of the
Restatement Effective Date, the Equity Interests in the Borrower and each Subsidiary have been
duly authorized and validly issued and are fully paid and nonassessable, and such Equity Interests
are owned by Holdings or the Borrower, directly or indirectly, free and clear of all Liens (other
than Liens created under the Loan Documents and any Liens permitted by Section 6.02). Except
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as set forth in Schedule 3.14, as of the Restatement Effective Date, there is no existing option,
warrant, call, right, commitment or other agreement to which Holdings, the Borrower or any
Subsidiary is a party requiring, and there are no Equity Interests in any Subsidiary outstanding
that upon exercise, conversion or exchange would require, the issuance by the Borrower or any
Subsidiary of any additional Equity Interests or other securities exercisable for, convertible into,
exchangeable for or evidencing the right to subscribed for or purchase any Equity Interests in the
Borrower or any Subsidiary.
SECTION 3.15. Labor Matters. As of the Restatement Effective Date, except as
could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, (i) there are no strikes, lockouts or slowdowns or any other material labor disputes against
Holdings, the Borrower or any Restricted Subsidiary pending or, to the knowledge of Holdings,
the Borrower or any Restricted Subsidiary, threatened and (ii) there are no unfair labor practice
complaints pending against Holdings, the Borrower or any Restricted Subsidiary or, to the
knowledge of Holdings, the Borrower or any Subsidiary, threatened against any of them before
the National Labor Relations Board or other Governmental Authority.
SECTION 3.16. Solvency. As of the Restatement Effective Date, immediately
after the consummation of the Transactions to occur on the Restatement Effective Date, and
giving effect to the rights of indemnification, subrogation and contribution under the Collateral
Agreement, (a) the fair value of the assets of Holdings, the Borrower and the Restricted
Subsidiaries, taken as a whole, at a fair valuation, will exceed their debts and liabilities,
subordinated, contingent or otherwise, (b) the present fair saleable value of the property of
Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole, will be greater than the
amount that will be required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
matured, (c) Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole, will be
able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured and (d) Holdings, the Borrower and the Restricted
Subsidiaries, taken as a whole, will not have unreasonably small capital with which to conduct
the business in which they are engaged as such business is now conducted and is proposed to be
conducted following the Restatement Effective Date. For purposes of this Section, the amount of
contingent liabilities at any time shall be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
SECTION 3.17. Collateral Matters. (a) The Collateral Agreement, upon
execution and delivery thereof by the parties thereto, will create in favor of the Administrative
Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined therein) and (i) when such Collateral constituting certificated securities (as
defined in the Uniform Commercial Code) is delivered to the Administrative Agent, together with
instruments of transfer duly endorsed in blank, the security interest created under the Collateral
Agreement will constitute a fully perfected security interest in all right, title and interest of the
pledgors thereunder in such Collateral, prior and superior in right to any other Person, and (ii)
when financing statements in appropriate form are filed in the applicable filing offices, the
security interest created under the Collateral Agreement will constitute a fully perfected security
interest in all right, title and interest of the Loan Parties in the remaining Collateral (as defined
therein) (subject to subsections (b) and (c) of this Section 3.17) to the extent perfection can be
obtained by filing Uniform Commercial Code financing statements, prior and superior to the
rights of any other Person, except for rights secured by Liens permitted under Section 6.02.
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(b) Each Mortgage, upon execution and delivery thereof by the parties
thereto, will create in favor of the Administrative Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right,
title and interest in and to the Mortgaged Properties subject thereto and the proceeds thereof,
and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages
will constitute a fully perfected security interest in all right, title and interest of the
mortgagors in the Mortgaged Properties and the proceeds thereof, prior and superior in right
to any other Person, but subject to Liens permitted under Section 6.02.
(c) Upon the recordation of the Collateral Agreement (or a short-form
security agreement in form and substance reasonably satisfactory to the Borrower and the
Administrative Agent) with the United States Patent and Trademark Office or the United
States Copyright Office, as applicable, and the filing of the financing statements referred to in
paragraph (a) of this Section, the security interest created under the Collateral Agreement will
constitute a fully perfected security interest in all right, title and interest of the Loan Parties in
the Intellectual Property (as defined in the Collateral Agreement) in which a security interest
may be perfected by filing in the United States of America, in each case prior and superior in
right to any other Person, but subject to Liens permitted under Section 6.02 (it being
understood and agreed that subsequent recordings in the United States Patent and Trademark
Office or the United States Copyright Office may be necessary to perfect a security interest in
such Intellectual Property acquired by the Loan Parties after the Restatement Effective Date).
SECTION 3.18. Designation as Senior Debt. All Obligations shall be
designated as “Senior Indebtedness” and “Designated Senior Indebtedness” or a similar term or
designation for purposes of and as defined in, any documentation with respect to any
subordinated Indebtedness.
SECTION 3.19. EEA Financial Institution. No Loan Party is an EEA Financial
Institution.
ARTICLE IV
Conditions
SECTION 4.01. [Reserved].
SECTION 4.02. [Reserved].
SECTION 4.03. Each Credit Event. The obligations of the Lenders to make
Loans on the occasion of any Borrowing, and of the Issuing Banks to issue, amend, renew or
extend any Letter of Credit, is subject to receipt of the request therefor in accordance herewith
and to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects (or, in the case of
representations and warranties qualified as to materiality, in all respects) on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, except in the case of any such representation and warranty
that expressly relates to a prior date, in which case such representation and warranty shall
be true and correct in all material respects (or in all respects, as applicable) as of such
earlier date.
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(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default or Event of Default shall have occurred and be continuing.
(c) The Borrower shall have delivered to the Administrative Agent the notice
required by Section 2.03.
Each Borrowing (provided that a conversion or a continuation of a Borrowing
shall not constitute a “Borrowing” for purposes of this Section 4.03) and each issuance,
amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by Holdings and the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section 4.03.
ARTICLE V
Affirmative Covenants
From and including the Restatement Effective Date and until the Commitments
shall have expired or been terminated and the principal of and interest on each Loan and all fees,
expenses and other amounts (other than contingent amounts not yet due) payable under this
Agreement or any other Loan Document shall have been paid in full and all Letters of Credit
(other than those collateralized or back-stopped on terms reasonably satisfactory to the applicable
Issuing Bank) shall have expired or been terminated and all LC Disbursements shall have been
reimbursed, each of Holdings and the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. In the case of
Holdings, Holdings will furnish to the Administrative Agent, which shall furnish to each Lender,
the following:
(a) within 90 days after the end of each fiscal year of Holdings (or such later
date as Form 10-K of Holdings is required to be filed with the SEC taking into account
any extension granted by the SEC, provided that Holdings gives the Administrative
Agent notice of any such extension), its audited consolidated balance sheet and audited
consolidated statements of operations, shareholders’ equity and cash flows as of the end
of and for such fiscal year, and related notes thereto, setting forth in each case in
comparative form the figures for the previous fiscal year, prepared in accordance with
generally accepted auditing standards and reported on by Deloitte & Touche LLP or other
independent public accountants of recognized national standing (without a “going
concern” or like qualification, exception or statement and without any qualification or
exception as to the scope of such audit) to the effect that such financial statements present
fairly in all material respects the financial condition, results of operations and cash flow
of Holdings and its subsidiaries on a consolidated basis as of the end of and for such
fiscal year in accordance with GAAP consistently applied and accompanied by a
narrative report describing the financial position, results of operations and cash flow of
Holdings and its consolidated subsidiaries, which requirement to deliver a narrative
report shall be satisfied by the filing by Holdings with the SEC of the requisite Form 10-
K for such fiscal year;
(b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of Holdings (or such later date as Form 10-Q of Holdings is required to be
filed with the SEC taking into account any extension granted by the SEC, provided that
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Holdings gives the Administrative Agent notice of any such extension), beginning with
the fiscal quarter of Holdings ended as of September 29, 2017, its unaudited consolidated
balance sheet and unaudited consolidated statements of operations and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year,
all certified by a Financial Officer of Holdings as presenting fairly in all material respects
the financial condition, results of operations and cash flows of Holdings and its
Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and such
portion of the fiscal year in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes, and accompanied by a
narrative report describing the financial position, results of operations and cash flow of
Holdings and its consolidated Subsidiaries, which requirement to deliver a narrative
report shall be satisfied by the filing by Holdings with the SEC of the requisite Form 10-
Q for such fiscal year;
(c) concurrently with each delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of Holdings (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations (A) demonstrating compliance with the covenants contained in
Sections 6.12 and 6.13 and (B) in the case of financial statements delivered under
clause (a) above, beginning with the financial statements for the fiscal year of Holdings
ending December 31, 2018, of Excess Cash Flow, (iii) stating whether any change in
GAAP or in the application thereof has occurred since the later of the date of Holdings’
audited financial statements referred to in Section 3.04 and the date of the prior certificate
delivered pursuant to this clause (c) indicating such a change and, if any such change has
occurred, specifying the effect of such change on the financial statements accompanying
such certificate and (iv) at any time when there is any Unrestricted Subsidiary, including
as an attachment with respect to each such financial statement, an Unrestricted Subsidiary
Reconciliation Statement (except to the extent that the information required thereby is
separately provided with the public filing of such financial statement);
(d) concurrently with any delivery of financial statements under clause (a)
above, a detailed consolidated budget for the then current fiscal year (including a
projected consolidated balance sheet and consolidated statements of projected operations
and cash flows as of the end of and for such fiscal year (and as of the end of and for each
fiscal quarter in such fiscal year) and setting forth the assumptions used for purposes of
preparing such budget) and, promptly when available, any significant revisions of such
budget;
(e) promptly after the request by any Lender, all documentation and other
information that such Lender reasonably requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act;
(f) promptly after the same becomes publicly available, copies of all periodic
and other reports, proxy statements and other materials filed by Holdings, the Borrower
or any Restricted Subsidiary with the SEC or with any national securities exchange, or
distributed by Holdings to the holders of its Equity Interests generally, as applicable; and
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(g) promptly following any request therefor, but subject to the limitations set
forth in the proviso to the last sentence of Section 5.08 and Section 9.12, such other
information regarding the operations, business affairs, assets, liabilities (including
contingent liabilities) and financial condition of Holdings, the Borrower or any Restricted
Subsidiary, or compliance with the terms of this Agreement or any other Loan Document,
as the Administrative Agent, any Issuing Bank or any Lender may reasonably request.
Information required to be furnished pursuant to clause (a), (b) or (f) of this Section shall be
deemed to have been furnished if such information, or one or more annual or quarterly reports
containing such information, shall have been posted by the Administrative Agent on the Platform
or shall be available on the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. Information required to be
furnished pursuant to this Section may also be furnished by electronic communications pursuant
to procedures approved by the Administrative Agent.
SECTION 5.02. Notices of Material Events. Holdings and the Borrower will
furnish to the Administrative Agent, which shall furnish to each Issuing Bank and each Lender,
prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or, to the knowledge of a Financial
Officer or another executive officer of Holdings, the Borrower or any Restricted
Subsidiary, affecting Holdings, the Borrower or any Restricted Subsidiary, or any adverse
development in any such pending action, suit or proceeding not previously disclosed in
writing by Holdings or the Borrower to the Administrative Agent, that in each case could
reasonably be expected to result in a Material Adverse Effect or that in any manner
questions the validity of this Agreement or any other Loan Document; and
(c) any other development (including notice of any matter or event that could
give rise to an Environmental Liability or ERISA Event) that has resulted, or could
reasonably be expected to result, in a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written statement of a
Financial Officer or other executive officer of the Borrower setting forth the details of the event
or development requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.03. Information Regarding Collateral. (a) Holdings will furnish to
the Administrative Agent prompt written notice of any change (i) in any Loan Party’s legal name,
as set forth in such Loan Party’s organizational documents, (ii) in the jurisdiction of incorporation
or organization of any Loan Party, (iii) in the form of organization of any Loan Party or (iv) in
any Loan Party’s organizational identification number, if any, or, with respect to a Loan Party
organized under the laws of a jurisdiction that requires such information to be set forth on the
face of a Uniform Commercial Code financing statement, the Federal Taxpayer Identification
Number of such Loan Party.
(b) At the time of delivery of financial statements pursuant to
Section 5.01(a), Holdings shall deliver to the Administrative Agent a completed
Supplemental Perfection Certificate (i) setting forth the information required pursuant to the
Supplemental Perfection Certificate and indicating, in a manner reasonably satisfactory to the
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Administrative Agent, any changes in such information from the most recent Supplemental
Perfection Certificate delivered pursuant to this Section (or, prior to the first delivery of a
Supplemental Perfection Certificate, from the Supplemental Perfection Certificate delivered
on the Restatement Effective Date) or (ii) certifying that there has been no change in such
information from the most recent Supplemental Perfection Certificate delivered pursuant to
this Section (or, prior to the first delivery of a Supplemental Perfection Certificate, from the
Supplemental Perfection Certificate delivered on the Restatement Effective Date.
SECTION 5.04. Existence; Conduct of Business. Each of Holdings and the
Borrower will, and will cause each of its Restricted Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names
necessary for the conduct of its business; provided that the foregoing shall not prohibit (i) any
merger, consolidation, liquidation or dissolution permitted under Section 6.03 or (ii) Holdings,
the Borrower and each of its Restricted Subsidiaries from allowing its respective patents,
copyrights, trademarks and trade names to lapse, expire or become abandoned in the ordinary
course of business or its reasonable business judgment, as applicable.
SECTION 5.05. Payment of Obligations. Each of Holdings and the Borrower
will, and will cause each of its Restricted Subsidiaries to, pay its material obligations (other than
Indebtedness and any obligations in respect of any Hedging Agreements), including Tax
liabilities, before the same shall become delinquent or in default, except where (a) (i) the validity
or amount thereof is being contested in good faith by appropriate proceedings and (ii) Holdings,
the Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP or (b) the failure to make payment would not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Except where the failure to do so
would not reasonably be expected to result in a Material Adverse Effect, each of Holdings and the
Borrower will, and will cause each of its Restricted Subsidiaries to, keep and maintain all
property necessary for the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
SECTION 5.07. Insurance. Each of Holdings and the Borrower will, and will
cause each of its Restricted Subsidiaries to, maintain, with financially sound and reputable
insurance companies, insurance in such amounts (with no greater risk retention) and against such
risks as is customarily maintained by companies of established repute engaged in the same or
similar businesses operating in the same or similar locations. Each such policy of liability or
casualty insurance maintained by or on behalf of Loan Parties will (a) in the case of each liability
insurance policy (other than workers’ compensation, director and officer liability or other policies
in which such endorsements are not customary), name the Administrative Agent, on behalf of the
Secured Parties, as an additional insured thereunder, (b) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement that names the Administrative Agent, on
behalf of the Secured Parties, as the loss payee thereunder and (c) provide for at least 30 days’ (or
such shorter number of days as may be agreed to by the Administrative Agent) prior written
notice to the Administrative Agent of any cancellation of such policy. Holdings will furnish to
the Lenders, upon reasonable request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained. If at any time any owned improved real property is
pledged as Collateral and such improved real property is located in an area identified by the
Federal Emergency Management Agency (or any successor agency) as a “special flood hazard
area” and flood insurance coverage is available under the National Flood Insurance Program, the
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applicable Loan Party (i) has obtained and will maintain, if available, flood hazard insurance on
such terms and in such amounts as required by the Flood Insurance Laws and Regulation H of the
Board of Governors and (ii) furnish to the Administrative Agent evidence of the renewal (and
payment of renewal premiums therefor) of all such policies prior to the expiration or lapse
thereof.1
SECTION 5.08. Books and Records; Inspection and Audit Rights. Each of
Holdings and the Borrower will, and will cause each of its Restricted Subsidiaries to, keep proper
books of record and accounts in which full, true and correct entries in conformity with GAAP and
all Requirements of Law are made of all dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of its Restricted
Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as reasonably requested;
provided that, excluding any such visits and inspections during the continuation of an Event of
Default, the Administrative Agent shall not exercise the rights under this Section 5.08 more often
than two times during any calendar year; provided further that none of Holdings, the Borrower or
any Restricted Subsidiary will be required to disclose, permit the inspection, examination or
making copies or abstracts of, or discussion of, any document, information or other matter (i) that
constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of
which disclosure to the Administrative Agent or any Lender (or their respective representatives or
contractors) is prohibited by Requirement of Law or any binding agreement or (iii) that is subject
to attorney-client or similar privilege or constitutes attorney work product.
SECTION 5.09. Compliance with Laws. Each of Holdings and the Borrower
will, and will take reasonable action to cause each of its Restricted Subsidiaries to, comply with
all Requirements of Law (including Environmental Laws) with respect to it or its operations or
property, except where the failure to do so, individually or in the aggregate, would not reasonably
be expected to result in a Material Adverse Effect. Holdings and the Borrower will maintain in
effect and enforce policies and procedures designed to ensure compliance by Holdings, the
Borrower, their Subsidiaries and the respective directors, officers, employees and agents of the
foregoing with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.10. Use of Proceeds; Letters of Credit. (a) The proceeds of the
Tranche A Term Loans will be used for the purposes set forth in the Amendment and Restatement
Agreement. The proceeds of the Revolving Loans and the Swingline Loans, as well as the
proceeds of any Incremental Extension of Credit (unless otherwise provided in the applicable
Incremental Facility Amendment), will be used for working capital and other general corporate
purposes (including acquisitions permitted by this Agreement) of Holdings, the Borrower and the
Restricted Subsidiaries. The proceeds of the Revolving Loans and the Swingline Loans may also
be used for other transactions not prohibited by this Agreement. No part of the proceeds of any
Loan will be used in violation of the representation set forth in Section 3.10. Letters of Credit
will be used by Holdings, the Borrower and the Restricted Subsidiaries for general corporate
purposes.
(b) The Borrower will not request any Borrowing or Letter of Credit, and the
Borrower shall not use, and shall procure that its Subsidiaries and its or their respective
1 NTD: The Administrative Agent has “life of loan” determination and will receive evidence of any
redesignation.
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directors, officers, employees and agents shall not use, the proceeds of any Borrowing or any
Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the
payment or giving of money, or anything else of value, to any Person in violation of any
Anti-Corruption Laws, (ii) in any manner that would result in the violation of any Sanctions
applicable to any party hereto, for the purpose of funding, financing or facilitating any
activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned
Country or (iii) otherwise in any manner that would result in the violation of any Sanctions
applicable to any party hereto.
SECTION 5.11. Additional Subsidiaries. If any additional Subsidiary is formed
or acquired (or otherwise becomes a Designated Subsidiary) after the Restatement Effective Date,
then Holdings will, as promptly as practicable and, in any event, within 60 days (or such longer
period as the Administrative Agent, acting reasonably, may agree to in writing (including
electronic mail)) after such Subsidiary is formed or acquired (or otherwise becomes a Designated
Subsidiary), notify the Administrative Agent thereof and, to the extent applicable, cause the
Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary (if it is a
Designated Subsidiary) and with respect to any Equity Interest in or Indebtedness of such
Subsidiary owned by or on behalf of any Loan Party.
SECTION 5.12. Further Assurances. (a) Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries that is a Subsidiary Loan Party to, execute any and all
further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture filings, mortgages,
deeds of trust and other documents), that may be required under any applicable law, or that the
Administrative Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties.
Each of Holdings and the Borrower also agrees to, and shall cause each of its Subsidiaries that is
a Subsidiary Loan Party to, provide to the Administrative Agent, from time to time upon request,
evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.
(b) If any material assets (including any real property or improvements
thereto or any interest therein with a fair market value in excess of $5,000,000) are acquired
by Holdings, the Borrower or any Subsidiary Loan Party after the Restatement Effective Date
(other than assets constituting Collateral under the Collateral Agreement that become subject
to the Lien created by the Collateral Agreement upon acquisition thereof), Holdings will
notify the Administrative Agent and the Lenders thereof, and, if requested by the
Administrative Agent or the Required Lenders, Holdings will cause such assets to be
subjected to a Lien securing the Obligations and will take, and cause the Subsidiary Loan
Parties to 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 (a) of this Section, all at the expense of the Loan Parties.
(c) Notwithstanding anything herein to the contrary, if at any time improved
real property is required to be pledged as Collateral, the applicable Loan Party shall not
deliver, and the Administrative Agent shall not enter into, accept or record, any Mortgage in
respect of such real property until (i) the date that occurs 30 days after the Administrative
Agent has delivered to the Lenders the following documents in respect of such real property:
(A) a completed flood zone determination from a third party vendor; (B) if such real property
is located in a “special flood hazard area”, (1) a notification to the applicable Loan Party of
that fact and (if applicable) notification to the applicable Loan Party that flood insurance
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coverage is not available under the National Flood Insurance Program because the
community does not participate in the National Flood Insurance Program and (2) evidence of
the receipt by the applicable Loan Party of such notice(s); and (C) if such notice is required to
be provided to the Loan Party and flood insurance is available under the National Flood
Insurance Program in the community in which such real property is located, evidence of flood
insurance in such form, on such terms and in such amounts as required by the Flood
Insurance Laws and Regulation H of the Board of Governors and (ii) the Administrative
Agent shall have received written confirmation from each Lender that flood insurance due
diligence and flood insurance compliance has been completed by such Lender (such written
confirmation not to be unreasonably conditioned, withheld or delayed), it being understood
that, for so long as either the Administrative Agent or any Lender is unable or fails to
complete flood insurance diligence to its reasonable satisfaction so as to permit the applicable
Loan Party to deliver a Mortgage as required by Section 5.11 or this Section 5.12, such Loan
Party shall have no obligation hereunder with respect to the delivery of such Mortgage or any
of the accompanying items set forth in clause (e) of the definition of “Collateral and
Guarantee Requirement” (and no Default or Event of Default shall be deemed to arise from
such Loan Party’s failure to deliver such Mortgage or any such accompanying items).
SECTION 5.13. Post-Effective Date Matters. As promptly as practicable, and in
any event within 90 days (or such longer period as the Administrative Agent, acting reasonably,
may agree to in writing), after the Restatement Effective Date, Holdings and the Borrower shall,
and shall cause each of its Subsidiaries that is a Loan Party to, deliver all Control Agreements that
are required to be delivered pursuant to the Collateral and Guarantee Requirement, except to the
extent otherwise agreed by the Administrative Agent pursuant to its authority as set forth in the
definition of the term “Collateral and Guarantee Requirement”.
SECTION 5.14. Designation of Subsidiaries. Holdings may at any time
designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary
as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no
Event of Default shall have occurred and be continuing or would result from such designation, (b)
immediately after giving effect to such designation, Holdings shall be in compliance on a Pro
Forma Basis with the covenants set forth in Sections 6.12 and 6.13 recomputed as of the last day
of the most recently ended fiscal quarter of Holdings, and the Borrower shall have delivered to
the Administrative Agent a certificate of a Financial Officer setting forth reasonably detailed
calculations demonstrating compliance with this clause (b), and (c) no Subsidiary may be
designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a “guarantor” (or any
similar designation) for any Material Indebtedness. The designation of any Subsidiary as an
Unrestricted Subsidiary shall constitute an investment by the parent company of such Subsidiary
therein under Section 6.04(r) at the date of designation in an amount equal to the net book value
of such parent company’s investment therein. The designation of any Unrestricted Subsidiary as
a Restricted Subsidiary shall constitute the incurrence at the time of designation of any
Indebtedness or Liens of such Subsidiary, and the making of an investment by such Subsidiary in
any investments of such Subsidiary, in each case existing at such time.
ARTICLE VI
Negative Covenants
From and including the Restatement Effective Date and until the Commitments
shall have expired or been terminated and the principal of and interest on each Loan and all fees,
expenses and other amounts (other than contingent amounts not yet due) payable under this
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Agreement or any other Loan Document have been paid in full, and all Letters of Credit (other
than those collateralized or back-stopped on terms reasonably satisfactory to the applicable
Issuing Bank) have expired or been terminated and all LC Disbursements shall have been
reimbursed, each of Holdings and the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. Neither Holdings nor
the Borrower will, nor will Holdings or the Borrower permit any of their respective Restricted
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder and under the other Loan Documents;
(b) Indebtedness existing on the Restatement Effective Date and set forth in
Schedule 6.01(b) and any Refinancing Indebtedness in respect thereof;
(c) Indebtedness of the Borrower to any Restricted Subsidiary and of any
Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that
(i) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any
Subsidiary Loan Party shall be subject to Section 6.04 and (ii) Indebtedness of the
Borrower or any Subsidiary Loan Party to any Restricted Subsidiary that is not a
Subsidiary Loan Party shall, on and after the Restatement Effective Date, be subordinated
to the Obligations on the terms set forth in the Global Intercompany Note;
(d) Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary
and by any Restricted Subsidiary of Indebtedness of the Borrower or any other Restricted
Subsidiary; provided that (i) the Indebtedness so Guaranteed is permitted by this Section
(other than clause (b) or (f)), (ii) Guarantees by the Borrower or any Subsidiary Loan
Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to
Section 6.04 and (iii) Guarantees permitted under this clause (d) shall be subordinated to
the Obligations of the applicable Loan Party to the same extent and on the same terms as
the Indebtedness so Guaranteed is subordinated to the Obligations;
(e) (i) Indebtedness of the Borrower or any Restricted Subsidiary incurred to
finance the acquisition, construction, repair, replacement or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness assumed by the
Borrower or any Restricted Subsidiary in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof; provided
that such Indebtedness is incurred prior to or within 270 days after such acquisition or the
completion of such construction, repair, replacement or improvement, and
(ii) Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant to
clause (i) above; provided that the aggregate principal amount of Indebtedness permitted
by this clause (e), together with any sale and leaseback transaction incurred pursuant to
Section 6.06, shall not exceed $10,000,000 at any time outstanding;
(f) (i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of
any Person not previously a Restricted Subsidiary that is merged or consolidated with or
into a Restricted Subsidiary in a transaction permitted hereunder) after the Restatement
Effective Date, or Indebtedness of any Person that is assumed by any Restricted
Subsidiary in connection with an acquisition of assets by such Restricted Subsidiary in an
acquisition permitted by Section 6.04; provided that such Indebtedness exists at the time
such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or such
assets are acquired and is not created in contemplation of or in connection with such
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Person becoming a Restricted Subsidiary (or such merger or consolidation) or such assets
being acquired and (ii) Refinancing Indebtedness in respect of Indebtedness incurred or
assumed, as applicable, pursuant to clause (i) above;
(g) other Indebtedness in an aggregate principal amount not exceeding
$5,000,000 at any time outstanding;
(h) Indebtedness owed to any Person (including obligations in respect of letters
of credit for the benefit of such Person) providing workers’ compensation, health,
disability or other employee benefits or property, casualty or liability insurance, pursuant
to reimbursement or indemnification obligations to such Person, in each case incurred in
the ordinary course of business;
(i) Indebtedness in respect of performance bonds, bid bonds, appeal bonds,
surety bonds, performance and completion guarantees and similar obligations (other than
in respect of other Indebtedness), in each case provided in the ordinary course of
business;
(j) Indebtedness in respect of Hedging Agreements permitted by Section 6.07;
(k) Indebtedness owed in respect of any overdrafts and related liabilities arising
from treasury, depositary and cash management services or in connection with any
automated clearinghouse transfers of funds; provided that such Indebtedness shall be
repaid in full within five Business Days of the incurrence thereof;
(l) Indebtedness in the form of purchase price adjustments, earnouts, non-
competition agreements or other arrangements representing acquisition consideration or
deferred payments of a similar nature incurred in connection with any acquisition or other
investment permitted under Section 6.04;
(m) Refinancing Term Loan Indebtedness incurred pursuant to Section 2.23;
provided that the Net Proceeds thereof are used to make the prepayments required under
clause (a)(ii) of Section 2.23;
(n) Alternative Incremental Facility Debt; provided that the aggregate principal
amount of such Alternative Incremental Facility Debt shall not exceed the amount
permitted under Section 2.21;
(o) Indebtedness representing deferred compensation to directors, officers,
consultants or employees of the Borrower and its Restricted Subsidiaries incurred in the
ordinary course of business;
(p) Indebtedness consisting of promissory notes issued by any Loan Party to
current or former officers, directors, consultants and employees or their respective
estates, spouses or former spouses to finance the purchase or redemption of Equity
Interests of Holdings permitted by Section 6.08;
(q) Indebtedness of the Borrower or any other Loan Party that is unsecured or
secured by the Collateral on a second-lien, subordinated basis to the Obligations (and is
not secured by any property or assets of Holdings, the Borrower or any Restricted
Subsidiary other than the Collateral) if, after giving effect to the incurrence thereof and
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the application of the proceeds thereof, (i) no Event of Default has occurred and is
continuing or would result therefrom and (ii) Holdings is in compliance with Sections
6.12 and 6.13;
(r) [reserved];
(s) [reserved];
(t) Indebtedness consisting of obligations to pay insurance premiums arising in
the ordinary course of business and not in connection with the borrowing of money; and
(u) unsecured Indebtedness of the Borrower or any Guarantor in an aggregate
principal amount not to exceed $75,000,000 at any time outstanding; provided that, at any
time, the sum of (x) the aggregate principal amount of Incremental Extensions of Credit
that have been made or incurred since the Restatement Effective Date (assuming for this
purpose that any Revolving Commitment Increase has been fully drawn) and (y) the
aggregate principal amount of Indebtedness outstanding at such time under this clause
(u), shall not exceed $100,000,000 in the aggregate.
SECTION 6.02. Liens. Neither Holdings nor the Borrower will, nor will
Holdings or the Borrower permit any of their respective Restricted Subsidiaries to, create, incur,
assume or permit to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any asset of the Borrower or any Restricted Subsidiary existing
on the Restatement Effective Date and set forth in Schedule 6.02; provided that (i) such
Lien shall not apply to any other asset of the Borrower or any Restricted Subsidiary
(other than assets financed by the same financing source in the ordinary course of
business) and (ii) such Lien shall secure only those obligations that it secures on the
Restatement Effective Date and extensions, renewals, replacements and refinancings
thereof so long as the principal amount of such extensions, renewals, replacements and
refinancings does not exceed the principal amount of the obligations being extended,
renewed, replaced or refinanced or, in the case of any such obligations constituting
Indebtedness, that are permitted under Section 6.01(b) as Refinancing Indebtedness in
respect thereof;
(d) any Lien existing on any asset prior to the acquisition thereof by the
Borrower or any Restricted Subsidiary or existing on any asset of any Person that
becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary
that is merged or consolidated with or into a Restricted Subsidiary in a transaction
permitted hereunder) after the Restatement Effective Date prior to the time such Person
becomes a Restricted Subsidiary (or is so merged or consolidated); provided that (i) such
Lien is not created in contemplation of or in connection with such acquisition or such
Person becoming a Restricted Subsidiary (or such merger or consolidation), (ii) such Lien
shall not apply to any other asset of Holdings, the Borrower or any Restricted Subsidiary
(other than (x) assets financed by the same financing source in the ordinary course of
business and (y) in the case of any such merger or consolidation, the assets of any special
purpose merger Subsidiary that is a party thereto) and (iii) such Lien shall secure only
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those obligations that it secures on the date of such acquisition or the date such Person
becomes a Restricted Subsidiary (or is so merged or consolidated) and extensions,
renewals, replacements and refinancings thereof so long as the principal amount of such
extensions, renewals and replacements does not exceed the principal amount of the
obligations being extended, renewed or replaced or, in the case of any such obligations
constituting Indebtedness, that are permitted under Section 6.01(f) as Refinancing
Indebtedness in respect thereof;
(e) Liens on fixed or capital assets acquired, constructed, repaired, replaced or
improved (including any such assets made the subject of a Capital Lease Obligation
incurred) by the Borrower or any Restricted Subsidiary; provided that (i) such Liens
secure Indebtedness incurred to finance such acquisition, construction, repair,
replacement or improvement and permitted by clause (e)(i) of Section 6.01 or any
Refinancing Indebtedness in respect thereof permitted by clause (e)(ii) of Section 6.01,
(ii) such Liens and the Indebtedness secured thereby are incurred prior to or within
270 days after such acquisition or the completion of such construction, repair,
replacement or improvement (provided that this clause (ii) shall not apply to any
Refinancing Indebtedness permitted by clause (e)(ii) of Section 6.01 or any Lien securing
such Refinancing Indebtedness), (iii) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing, repairing, replacing or improving such fixed or capital
asset and in any event, the aggregate principal amount of such Indebtedness does not
exceed the amount permitted under the second proviso of Section 6.01(e) at any time
outstanding and (iv) such Liens shall not apply to any other property or assets of the
Borrower or any Restricted Subsidiary (except assets financed by the same financing
source in the ordinary course of business);
(f) in connection with the sale or transfer of any Equity Interests or other assets
in a transaction permitted under Section 6.05, customary rights and restrictions contained
in agreements relating to such sale or transfer pending the completion thereof;
(g) in the case of (i) any Restricted Subsidiary that is not a wholly owned
Subsidiary or (ii) the Equity Interests in any Person that is not a Restricted Subsidiary,
any encumbrance or restriction, including any put and call arrangements, related to
Equity Interests in such Restricted Subsidiary or such other Person set forth in the
organizational documents of such Restricted Subsidiary or such other Person or any
related joint venture, shareholders’ or similar agreement;
(h) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits, escrow arrangements or
similar arrangements made by the Borrower or any Restricted Subsidiary in connection
with any letter of intent or purchase agreement for an acquisition or other transaction
permitted hereunder;
(i) Liens on Collateral securing (i) any Permitted Pari Passu Refinancing Debt,
Permitted Second Priority Refinancing Debt or Alternative Incremental Facility Debt or
(ii) any secured Indebtedness permitted to be incurred under Section 6.01(q); provided
that, in the case of each of clauses (i) and (ii), such Liens are subject to customary
intercreditor arrangements reasonably satisfactory to the Administrative Agent;
(j) Liens granted by a Subsidiary that is not a Loan Party in respect of
Indebtedness permitted to be incurred by such Subsidiary under Section 6.01; and
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(k) Liens not otherwise permitted by this Section to the extent that the aggregate
outstanding principal amount of the obligations at any time outstanding that are secured
thereby does not exceed $5,000,000.
SECTION 6.03. Fundamental Changes. (a) Neither Holdings nor the Borrower
will, nor will they permit any of their Restricted Subsidiaries to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing, (i) any Person may merge into or consolidate with the
Borrower in a transaction in which the Borrower is the surviving entity or the surviving entity
(the “Successor Borrower”) (A) is organized under the laws of the United States of America, (B)
expressly assumes the Borrower’s obligations under this Agreement and the other Loan
Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form
reasonably satisfactory to the Administrative Agent, (C) each Subsidiary Loan Party, unless it is
the other party to such merger or consolidation, shall have by a supplement to the Collateral
Agreement (and, if reasonably requested by the Administrative Agent, each other applicable
Security Document) confirmed that its obligations thereunder shall apply to the Successor
Borrower’s obligations under this Agreement and (D) each mortgagor of a Mortgaged Property,
unless it is the other party to such merger or consolidation, shall have by an amendment to or
restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to
the Successor Borrower’s obligations under this Agreement; provided that if the foregoing are
satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this
Agreement, (ii) any Person (other than Holdings and the Borrower) may merge into or
consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is a
Restricted Subsidiary and, if any party to such merger or consolidation is a Subsidiary Loan
Party, is a Subsidiary Loan Party, (iii) any Restricted Subsidiary other than the Borrower may
merge into or consolidate with any Person in a transaction permitted under Section 6.05 in which,
after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary, (iv) any
Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger or consolidation involving a
Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger or
consolidation shall not be permitted unless it is also permitted by Section 6.04, and (v) the
Borrower or any Restricted Subsidiary may engage in a merger, consolidation, dissolution or
liquidation, the purpose of which is to effect a disposition permitted pursuant to Section 6.05.
(b) The Borrower will not, and Holdings and the Borrower will not permit
any Restricted Subsidiary to, engage to any material extent in any business other than
businesses of the type to be conducted by the Borrower and the Restricted Subsidiaries as
described in the Form 10 and businesses reasonably related, incidental or ancillary thereto.
(c) Notwithstanding anything in this Agreement or any other Loan
Document to the contrary, Holdings will not (i) engage in any business or activity other than
the ownership of all the outstanding Equity Interests of the Borrower and activities incidental
thereto and compliance with its obligations under the Loan Documents, (ii) own or acquire
any assets (other than Equity Interests of the Borrower, cash and Permitted Investments), (iii)
incur any liabilities (other than liabilities under the Loan Documents, liabilities imposed by
law, including tax liabilities, and other liabilities incidental to its existence and permitted
business and activities) or (iv) incur or permit to exist any Liens on any of its assets (other
than the Liens created by the Loan Documents and Liens imposed by law).
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SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to,
purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that
was not a wholly owned Restricted Subsidiary prior to such merger or consolidation) any Equity
Interests in or evidences of Indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) cash and Permitted Investments;
(b) investments constituting the purchase or other acquisition (in one transaction
or a series of related transactions) of all or substantially all of the property and assets or
business of any Person or of assets constituting a business unit, a line of business or
division of such Person, or the majority of the Equity Interests in a Person that, upon the
consummation thereof, will be a Restricted Subsidiary if, at the time the binding
agreement for such investment is entered into, after giving effect to such investment,
Holdings would be in compliance with Sections 6.12 and 6.13 recomputed on a Pro
Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower
prior to such date; provided that (i) such investment was not preceded by, or
consummated pursuant to, a hostile offer (including a proxy contest), (ii) no Event of
Default has occurred and is continuing at the time the binding agreement for such
investment is entered into, (iii) all actions required to be taken with respect to such
acquired Restricted Subsidiary or such acquired assets under Sections 5.11 and 5.12 shall
have been taken (or arrangements for the taking of such actions reasonably satisfactory to
the Administrative Agent shall have been made), (iv) immediately after giving pro forma
effect to such investment, the Liquidity shall be at least $35,000,000 and (v) the
aggregate amount of cash consideration paid in respect of such investments (including in
the form of loans or advances made to Restricted Subsidiaries that are not Loan Parties)
by Loan Parties involving the acquisition of Restricted Subsidiaries that do not become
Loan Parties shall not exceed, at the time such investment is made and after giving effect
thereto, $5,000,000;
(c) investments existing on the Restatement Effective Date and set forth on
Schedule 6.04;
(d) investments by Holdings in the Borrower and by the Borrower and the
Restricted Subsidiaries in Equity Interests of their respective subsidiaries; provided that
(i) any such Equity Interests held by a Loan Party shall be pledged to the extent required
by the definition of the term “Collateral and Guarantee Requirement” and (ii) the
aggregate outstanding amount of such investments made by Loan Parties in Restricted
Subsidiaries that are not Loan Parties (together with investments permitted under clause
(s) of this Section, outstanding intercompany loans permitted under subclause (ii) of the
proviso to clause (e) of this Section and outstanding Guarantees permitted under the
proviso to clause (f) of this Section) shall not exceed $25,000,000 (in each case
determined without regard to any write-downs or write-offs); provided that if any such
investment under this subclause (ii) is made for the purpose of making an investment,
loan or advance permitted under clause (r) of this Section, the amount available under
this clause (d) shall not be reduced by the amount of any such investment loan or advance
which reduces the basket under clause (r) of this Section);
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(e) loans or advances made by Holdings or the Borrower to any Restricted
Subsidiary and made by any Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary; provided that (i) any such loans and advances made by a Loan
Party shall be evidenced, on and after the Restatement Effective Date, by a promissory
note pledged pursuant to the Collateral Agreement and (ii) the outstanding amount of
such loans and advances made by Loan Parties to Restricted Subsidiaries that are not
Loan Parties (together with investments permitted under clause (s) of this Section,
investments permitted under subclause (ii) of the proviso to clause (d) of this Section and
outstanding Guarantees permitted under the proviso to clause (f) of this Section) shall not
exceed $25,000,000 (in each case determined without regard to any write-downs or write-
offs); provided that if any such loan or advance under this subclause (ii) is made for the
purpose of making an investment, loan or advance permitted under clause (r) of this
Section, the amount available under this clause (e) shall not be reduced by the amount of
any such investment loan or advance which reduces the basket under clause (r) of this
Section);
(f) Guarantees of Indebtedness that is permitted under Section 6.01 and other
obligations, in each case of Holdings, the Borrower or any Restricted Subsidiary;
provided that the total of the aggregate outstanding principal amount of Indebtedness and
the aggregate amount of other obligations, in each case of Restricted Subsidiaries that are
not Loan Parties that is Guaranteed by any Loan Party (together with investments
permitted under clause (s) of this Section, investments permitted under subclause (ii) of
the proviso to clause (d) of this Section and intercompany loans permitted under
subclause (ii) to the proviso to clause (e) of this Section) shall not exceed $25,000,000 (in
each case determined without regard to any write-downs or write-offs);
(g) loans or advances to directors, officers, consultants or employees of
Holdings, the Borrower or any Restricted Subsidiary made in the ordinary course of
business of Holdings, the Borrower or such Restricted Subsidiary, as applicable, not
exceeding $1,000,000 in the aggregate outstanding at any time (determined without
regard to any write-downs or write-offs of such loans or advances);
(h) payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses of Holdings, the Borrower or
any Restricted Subsidiary for accounting purposes and that are made in the ordinary
course of business;
(i) investments received in connection with the bankruptcy or reorganization of,
or settlement of delinquent accounts and disputes with, customers and suppliers, in each
case in the ordinary course of business;
(j) investments in the form of Hedging Agreements permitted by Section 6.07;
(k) investments of any Person existing at the time such Person becomes a
Restricted Subsidiary or consolidates or merges with the Borrower or any Restricted
Subsidiary so long as such investments were not made in contemplation of such Person
becoming a Restricted Subsidiary or of such consolidation or merger;
(l) investments resulting from pledges or deposits described in clause (c) or (d)
of the definition of the term “Permitted Encumbrance”;
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(m) investments made as a result of the receipt of noncash consideration from a
sale, transfer, lease or other disposition of any asset in compliance with Section 6.05;
(n) investments that result solely from the receipt by Holdings, the Borrower or
any Restricted Subsidiary from any of its subsidiaries of a dividend or other Restricted
Payment in the form of Equity Interests, evidences of Indebtedness or other securities
(but not any additions thereto made after the date of the receipt thereof);
(o) receivables or other trade payables owing to the Borrower or a Restricted
Subsidiary if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided that such trade terms
may include such concessionary trade terms as the Borrower or any Restricted Subsidiary
deems reasonable under the circumstances;
(p) mergers and consolidations permitted under Section 6.03 that do not involve
any Person other than Holdings, the Borrower and Restricted Subsidiaries that are wholly
owned Restricted Subsidiaries;
(q) Guarantees by the Borrower or any Restricted Subsidiary of leases (other
than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in
each case entered into in the ordinary course of business;
(r) so long as no Event of Default has occurred and is continuing or would result
therefrom, other investments, loans and advances by the Borrower or any Restricted
Subsidiary in an aggregate amount, as valued at cost at the time each such investment,
loan or advance is made and including all related commitments for future investments,
loans or advances (and the principal amount of any Indebtedness that is assumed or
otherwise incurred in connection with such investment, loan or advance), in an aggregate
amount not exceeding, at the time such investments, loans or advances are made and after
giving effect thereto, the sum of (i) $10,000,000 plus (ii) the Available Amount at such
time in the aggregate for all such investments made or committed to be made from and
after the Restatement Effective Date plus an amount equal to any returns of capital or sale
proceeds actually received in cash in respect of any such investments (which amount
shall not exceed the amount of such investment valued at cost at the time such investment
was made); and
(s) so long as no Event of Default has occurred and is continuing or would result
therefrom, other investments, loans and advances by the Borrower or any Restricted
Subsidiary in any joint venture or similar Person in which the Borrower or any Restricted
Subsidiary owns Equity Interests but that is not a Subsidiary in an aggregate amount, as
valued at cost at the time each such investment, loan or advance is made and including all
related commitments for future investments, loans or advances (and the principal amount
of any Indebtedness that is assumed or otherwise incurred in connection with such
investment, loan or advance), not exceeding, at the time such investments, loans or
advances are made and after giving effect thereto (when taken together with investments
permitted under subclause (ii) of the first proviso to clause (d) of this Section,
intercompany loans permitted under subclause (ii) to the first proviso to clause (e) of this
Section and outstanding Guarantees permitted under the proviso to clause (f) of this
Section) $25,000,000 (in each case determined without regard to any write-downs or
write-offs), plus an amount equal to any returns of capital or sale proceeds actually
received in cash in respect of any such investments (which amount shall not exceed the
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amount of such investment value at cost at the time such investment was made); provided
that if any such investment under this clause (s) is made for the purpose of making an
investment, loan or advance permitted under clause (r) of this Section, the amount
available under this clause (s) shall not be reduced by the amount of any such investment
loan or advance which reduces the basket under clause (r) of this Section.
The amount, as of any date of determination, of (i) any investment in the form of a loan or an
advance shall be the principal amount thereof outstanding on such date, minus any cash payments
actually received by such investor representing a payment or prepayment of in respect of
principal of such Investment, but without any adjustment for write-downs or write-offs (including
as a result of forgiveness of any portion thereof) with respect to such loan or advance after the
date thereof, (ii) any investment in the form of a Guarantee shall be equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which
such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof, as determined in good faith by the Borrower, (iii) any investment in an
Equity Interests by the investor to the investee, including any capital contribution, shall be the fair
market value (as determined in good faith by the Borrower) of such Equity Interests or capital
contribution, minus any payments actually received by such investor representing a return of
capital of such investment, but without any other adjustment for increases or decreases in value
of, or write-ups, write-downs or write-offs with respect to, such investment after the date of such
Investment, and (iv) any other investment (other than any investment referred to in clause (i), (ii)
or (iii) above) by the specified Person shall be the original cost of such investment (including any
Indebtedness assumed in connection therewith), minus the amount of any portion of such
investment that has been repaid to the investor in cash as a repayment of principal or a return of
capital, but without any other adjustment for increases or decreases in value of, or write-ups,
write-downs or write-offs with respect to, such investment after the date of such Investment. For
purposes of this Section 6.04, if an investment involves the acquisition of more than one Person,
the amount of such investment shall be allocated among the acquired Persons in accordance with
GAAP; provided that pending the final determination of the amounts to be so allocated in
accordance with GAAP, such allocation shall be as reasonably determined by the Borrower.
SECTION 6.05. Asset Sales. Neither Holdings nor the Borrower will, nor will
they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will Holdings or the Borrower permit any
Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other
than issuing directors’ qualifying shares and other than issuing Equity Interests to the Borrower or
another Restricted Subsidiary), except:
(a) sales, transfers, leases and other dispositions of (i) inventory, (ii) used,
obsolete or surplus equipment, (iii) property no longer used or useful in the conduct of
the business of the Borrower and the Restricted Subsidiaries (including intellectual
property), (iv) immaterial assets and (v) cash and Permitted Investments, in each case in
the ordinary course of business;
(b) sales, transfers, leases and other dispositions to the Borrower or a Restricted
Subsidiary; provided that any such sales, transfers, leases or other dispositions involving
a Restricted Subsidiary that is not a Loan Party shall, to the extent applicable, be made in
compliance with Sections 6.04 and 6.09;
(c) sales, transfers and other dispositions of accounts receivable in connection
with the compromise, settlement or collection thereof not as part of any accounts
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receivables financing transaction;
(d) (i) sales, transfers, leases and other dispositions of assets to the extent that
such assets constitute an investment permitted by clause (i), (k) or (m) of Section 6.04 or
another asset received as consideration for the disposition of any asset permitted by this
Section (in each case, other than Equity Interests in a Restricted Subsidiary, unless all
Equity Interests in such Restricted Subsidiary (other than directors’ qualifying shares) are
sold) and (ii) sales, transfers, and other dispositions of the Equity Interests of a Restricted
Subsidiary by the Borrower or a Restricted Subsidiary to the extent such sale, transfer or
other disposition would be permissible as an investment in a Restricted Subsidiary
permitted by Section 6.04(d) or (r);
(e) leases or subleases entered into in the ordinary course of business, to the
extent that they do not materially interfere with the business of Holdings, the Borrower or
any Restricted Subsidiary;
(f) licenses or sublicenses of intellectual property in the ordinary course of
business, to the extent that they do not materially interfere with the business of Holdings,
the Borrower or any Restricted Subsidiary;
(g) dispositions resulting from any casualty or other insured damage to, or any
taking under power of eminent domain or by condemnation or similar proceeding of, any
asset of any of Holdings, the Borrower or any Restricted Subsidiary;
(h) dispositions of assets to the extent that (i) such assets are exchanged for
credit against the purchase price of similar replacement assets or (ii) the proceeds of such
disposition are promptly applied to the purchase price of such replacement assets;
(i) dispositions permitted by Section 6.08;
(j) sales, transfers, leases and other dispositions of assets that are not permitted
by any other clause of this Section; provided that (i) the aggregate fair value of all assets
sold, transferred, leased or otherwise disposed of in reliance upon this clause (j) shall not
exceed (A) in any fiscal year, $5,000,000 and (B) during the term of this Agreement,
$10,000,000 and (ii) no Event of Default has occurred and is continuing or would result
therefrom; and
(k) sales, transfers or other dispositions of accounts receivable in connection
with the factoring on a non-recourse basis of such accounts receivable;
provided that all sales, transfers, leases and other dispositions permitted hereby (other than those
permitted by clause (b)) shall be made for fair value (as determined in good faith by the
Borrower), and at least 75% of the consideration from all sales, transfers, leases and other
dispositions permitted hereby (other than those permitted by clause (b), (d), (g) or (h)) since the
Restatement Effective Date, on a cumulative basis, is in the form of cash or cash equivalents;
provided further that (i) any consideration in the form of Permitted Investments that are disposed
of for cash consideration within 30 Business Days after such sale, transfer or other disposition
shall be deemed to be cash consideration in an amount equal to the amount of such cash
consideration for purposes of this proviso, (ii) any liabilities (as shown on the Borrower’s or such
Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto)
of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms
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subordinated to the payment in cash of the Obligations, that are assumed by the transferee with
respect to the applicable sale, transfer, lease or other disposition and for which the Borrower and
all the Restricted Subsidiaries shall have been validly released by all applicable creditors in
writing shall be deemed to be cash consideration in an amount equal to the liabilities so assumed
and (iii) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in
respect of such sale, transfer, lease or other disposition having an aggregate fair market value,
taken together with all other Designated Non-Cash Consideration received pursuant to this clause
(iii) that is at that time outstanding, not in excess of $1,000,000 at the time of the receipt of such
Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-
Cash Consideration being measured at the time received and without giving effect to subsequent
changes in value, shall be deemed to be cash consideration.
SECTION 6.06. Sale and Leaseback Transactions. Neither Holdings nor the
Borrower will, nor will they permit any Restricted Subsidiary to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same purpose or purposes as
the property sold or transferred, except for any such sale of any fixed or capital assets by the
Borrower or any Restricted Subsidiary that is made for cash consideration in an amount not less
than the fair value of such fixed or capital asset and is consummated within 270 days after the
Borrower or such Restricted Subsidiary acquires or completes the construction of such fixed or
capital asset; provided that, if such sale and leaseback results in a Capital Lease Obligation, such
Capital Lease Obligation is permitted by Section 6.01(e) and any Lien made the subject of such
Capital Lease Obligation is permitted by Section 6.02(e).
SECTION 6.07. Hedging Agreements. Neither Holdings nor the Borrower will,
nor will they permit any Restricted Subsidiary to, enter into any Hedging Agreement, except
(a) Hedging Agreements entered into to hedge or mitigate risks to which Holdings, the Borrower
or any Restricted Subsidiary has actual exposure (other than those in respect of the Equity
Interests of Holdings, the Borrower or any Restricted Subsidiary) and (b) Hedging Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from floating to fixed rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of Holdings, the Borrower or any
Restricted Subsidiary.
SECTION 6.08. Restricted Payments; Certain Payments of Junior Indebtedness.
(a) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that:
(i) [reserved];
(ii) the Borrower and any Restricted Subsidiary may declare and pay dividends
or make other distributions with respect to its Equity Interests, or make other Restricted
Payments in respect of its Equity Interests, in each case ratably to the holders of such
Equity Interests;
(iii) Holdings may declare and pay dividends with respect to its Equity Interests
payable solely in shares of Qualified Equity Interests or Disqualified Equity Interests
permitted hereunder;
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(iv) [reserved];
(v) Holdings may make cash payments in lieu of the issuance of fractional shares
representing insignificant interests in Holdings in connection with the exercise of
warrants, options or other securities convertible into or exchangeable for Equity Interests
in Holdings;
(vi) Holdings may make repurchases of Equity Interests or withhold Equity
Interests, in each case if such Equity Interests are tendered by a holder of stock options
upon the exercise of such stock options and such Equity Interests represent a portion of
the exercise price of such stock options (and related redemption or cancellation of shares
for payment of taxes or other amounts relating to the exercise under such stock option or
other benefit plans); provided that the foregoing repurchases are not effected by the
making of any payment in cash by Holdings, the Borrower or any of its Restricted
Subsidiaries, but are instead are effected by either (x) Holdings withholding Equity
Interests that would otherwise be issued upon the exercise of stock options or (y)
Holdings accepting Equity Interests tendered by a holder of stock options upon the
exercise of stock options by such holder;
(vii) concurrently with any issuance of Qualified Equity Interests, Holdings may
redeem, purchase or retire any Equity Interests of Holdings using the proceeds of, or
convert or exchange any Equity Interests of Holdings for, such Qualified Equity Interests;
(viii) Holdings may make Restricted Payments not otherwise permitted by this
Section 6.08(a) in an aggregate amount not to exceed $10,000,000 less the sum of (x) the
aggregate amount of Restricted Payments previously made in reliance on this clause (viii)
and (y) the aggregate amount of payments of Indebtedness previously made in reliance
on clause (iv) of Section 6.08(b); provided that, with respect to any Restricted Payment
made in reliance on this clause (viii), (x) no Default has occurred or is continuing at the
time such Restricted Payment is made or would result therefrom and (y) immediately
after giving effect to such Restricted Payment, Liquidity is at least $25,000,000;
(ix) Holdings may make Restricted Payments not otherwise permitted by this
Section 6.08(a) in an aggregate amount not to exceed, at any time, the Available Amount
at such time; provided that, with respect to any Restricted Payment made in reliance on
this clause (ix), (x) no Default has occurred or is continuing at the time such Restricted
Payment is made or would result therefrom, (y) after giving effect to such Restricted
Payment, Holdings shall be in compliance on a Pro Forma Basis with the covenants set
forth in Sections 6.12 and 6.13 recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower and (z) immediately after giving effect to such Restricted
Payment, Liquidity is at least $25,000,000;
(x) Restricted Payments may be made in the form of the payment of withholding
or similar taxes payable or expected to be payable in connection with the exercise of
stock options and the vesting of restricted stock, or the withholding, repurchase,
redemption or retirement of any equity interests granted to current or former employees,
officers or directors of the Borrower, Holdings or any Subsidiary pursuant to the equity
incentive plans of Holdings; and
(xi) Holdings may make Restricted Payments not otherwise permitted by this
Section 6.08(a); provided that, with respect to any Restricted Payment made in reliance
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on this clause (xi), (x) no Default has occurred or is continuing at the time such
Restricted Payment is made or would result therefrom, (y) the Total Leverage Ratio,
calculated on a Pro Forma Basis after giving effect to such Restricted Payment as of the
last day of the most recently ended fiscal quarter of the Borrower, shall be less than or
equal to 1.25 to 1.00 and (z) immediately after giving effect to such Restricted Payment,
Liquidity is at least $25,000,000.
(b) Neither Holdings nor the Borrower will, nor will they permit any
Restricted Subsidiary to, prepay, redeem, purchase or otherwise satisfy any Indebtedness that
is subordinated in right of payment to the Obligations, except for:
(i) (A) payments of Indebtedness created under this Agreement or any other
Loan Document and (B) payments of intercompany Indebtedness not prohibited by the
subordination terms of the Global Intercompany Note;
(ii) regularly scheduled interest and principal payments as and when due in
respect of any such Indebtedness, other than payments in respect of such Indebtedness
prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness with the proceeds of other Indebtedness
permitted under Section 6.01;
(iv) payments of or in respect of Indebtedness in an amount not to exceed
$5,000,000 less the sum of (x) the aggregate amount of payments previously made in
reliance on this clause (iv) and (y) the aggregate amount of Restricted Payments
previously made in reliance on clause (viii) of Section 6.08(a); provided that, with respect
to any payment made in reliance on this clause (iv), (x) no Default has occurred or is
continuing at the time such payment is made or would result therefrom and (y)
immediately after giving effect to such payment, Liquidity is at least $25,000,000;
(v) payments of or in respect of Indebtedness in an amount not to exceed, at any
time, the Available Amount at such time; provided that, with respect to any payment
made in reliance on this clause (v), (x) no Default has occurred or is continuing at the
time such payment is made or would result therefrom, (y) after giving effect to such
payment, Holdings shall be in compliance on a Pro Forma Basis with the covenants set
forth in Sections 6.12 and 6.13 recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower and (z) immediately after giving effect to such payment,
Liquidity is at least $25,000,000; and
(vi) payments of or in respect of Indebtedness not otherwise permitted by this
Section 6.08(b); provided that, with respect to any such payment made in reliance on this
clause (vi), (x) no Default has occurred or is continuing at the time such payment is made
or would result therefrom, (y) the Total Leverage Ratio, calculated on a Pro Forma Basis
after giving effect to such payment as of the last day of the most recently ended fiscal
quarter of the Borrower, shall be less than or equal to 1.25 to 1.00 and (z) immediately
after giving effect to such payment, Liquidity is at least $25,000,000.
SECTION 6.09. Transactions with Affiliates. Neither Holdings nor the
Borrower will, nor will they permit any Restricted Subsidiary to, sell, lease or otherwise transfer
any assets to, or purchase, lease or otherwise acquire any assets from, or otherwise engage in any
other transactions involving aggregate consideration in excess of $500,000 with, any of its
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Affiliates, except (i) transactions that are at prices and on terms and conditions not less favorable
to the Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length basis
from unrelated third parties, (ii) transactions between or among the Loan Parties not involving
any other Affiliate, (iii) advances, equity issuances, repurchases, retirements or other acquisitions
or retirements of Equity Interests and other Restricted Payments permitted under Section 6.08 and
investments, loans and advances to Restricted Subsidiaries permitted under Section 6.04 and any
other transaction involving the Borrower and the Restricted Subsidiaries permitted under Section
6.03 to the extent such transaction is between the Borrower and one or more Restricted
Subsidiaries or between two or more Restricted Subsidiaries and Section 6.05 (to the extent such
transaction is not required to be for fair value thereunder), (iv) the payment of reasonable fees to
directors of Holdings, the Borrower or any Restricted Subsidiary who are not employees of
Holdings, the Borrower or any Restricted Subsidiary, and compensation and employee benefit
arrangements paid to, and indemnities provided for the benefit of, directors, officers, consultants
or employees of Holdings, the Borrower or the Restricted Subsidiaries in the ordinary course of
business, (v) any issuances of securities or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment agreements, stock options and stock
ownership plans approved by the Borrower’s board of directors and (vi) employment and
severance arrangements entered into in the ordinary course of business between Holdings, the
Borrower or any Restricted Subsidiary and any employee thereof and approved by the Borrower’s
board of directors.
SECTION 6.10. Restrictive Agreements. Neither Holdings nor the Borrower
will, nor will they permit any Restricted Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of Holdings, the Borrower or any Restricted Subsidiary to create,
incur or permit to exist any Lien upon any of its assets to secure the Obligations or (b) the ability
of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its
Equity Interests, to make or repay loans or advances to the Borrower or any Restricted
Subsidiary, to Guarantee Indebtedness of the Borrower or any Restricted Subsidiary, to transfer
any of its properties or assets to the Borrower or any Restricted Subsidiary or to grant Liens on its
assets (including Equity Interests) to the Administrative Agent; provided that (i) the foregoing
shall not apply to (A) restrictions and conditions imposed by law or by this Agreement, any other
Loan Document, any Incremental Facility Amendment, any Refinancing Facility Agreement or
any document governing any Refinancing Term Loan Indebtedness, Refinancing Revolving
Commitments or Refinancing Indebtedness of any of the foregoing, (B) in the case of any
Restricted Subsidiary that is not a wholly owned Restricted Subsidiary, restrictions and
conditions imposed by its organizational documents or any related joint venture or similar
agreements; provided that such restrictions and conditions apply only to such Restricted
Subsidiary and to the Equity Interests of such Restricted Subsidiary, (C) customary restrictions
and conditions contained in agreements relating to the sale of a Restricted Subsidiary or any
assets of Holdings, the Borrower or any Restricted Subsidiary, in each case pending such sale;
provided that such restrictions and conditions apply only to such Restricted Subsidiary or the
assets that are to be sold and, in each case, such sale is permitted hereunder, (D) restrictions and
conditions existing on the Restatement Effective Date and identified on Schedule 6.10 (and any
extension or renewal of, or any amendment, modification or replacement of the documents set
forth on such schedule that do not expand the scope of, any such restriction or condition in any
material respect) and (E) restrictions and conditions imposed by any agreement relating to
Indebtedness of any Restricted Subsidiary in existence at the time such Restricted Subsidiary
became a Restricted Subsidiary and otherwise permitted by clause (f) of Section 6.01 or to any
restrictions in any Indebtedness of a non-Loan Party Restricted Subsidiary permitted by clause (g)
of Section 6.01, in each case if such restrictions and conditions apply only to such Restricted
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Subsidiary and its subsidiaries; and (ii) clause (a) of the foregoing shall not apply to (A)
restrictions and conditions imposed by any agreement relating to secured Indebtedness permitted
by clause (e) of Section 6.01 if such restrictions and conditions apply only to the assets securing
such Indebtedness and (B) customary provisions in leases and other agreements restricting the
assignment thereof.
SECTION 6.11. Amendment of Material Documents. Neither Holdings nor the
Borrower will, nor will they permit any of their respective Restricted Subsidiaries to, amend,
modify or waive, (a) its certificate of incorporation, bylaws or other organizational documents,
(b) any of the Spin-Off Documents or (c) any agreement or instrument governing or evidencing
any Material Indebtedness that is subordinated in right of payment to the Obligations, in each
case if the effect of such amendment, modification or waiver would be materially adverse to the
Lenders.
SECTION 6.12. Interest Expense Coverage Ratio. Holdings will not permit, as
of the last day of any fiscal quarter of Holdings, the ratio of (a) Consolidated EBITDA to (b)
Consolidated Cash Interest Expense, in each case for the period of four consecutive fiscal
quarters of Holdings ending on such day (commencing with the four consecutive fiscal quarters
of Holdings ending December 31, 2017) to be less than 4.50 to 1.00.
SECTION 6.13. Total Leverage Ratio. Holdings will not permit the Total
Leverage Ratio for the period of four consecutive fiscal quarters of Holdings (commencing with
the four consecutive fiscal quarters of Holdings ending December 31, 2017) ending on the last
day of any fiscal quarter of Holdings during any period set forth below, to be greater than (a) 3.00
to 1.00 or (b) for the twelve-month period immediately succeeding the consummation of a
Qualified Acquisition, 3.25 to 1.00.
SECTION 6.14. Changes in Fiscal Periods. Holdings will neither (a) permit its
fiscal year or the fiscal year of the Borrower or any Restricted Subsidiary to end on a day other
than December 31 (or, if different, on dates consistent with practice in effect on the Restatement
Effective Date), nor (b) change its method of determining fiscal quarters.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events (each such
event, an “Event of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any
other amount (other than an amount referred to in clause (a) of this Section) payable
under this Agreement or any other Loan Document, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of three
Business Days;
(c) any representation or warranty made or deemed made by or on behalf of
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Holdings, the Borrower or any Restricted Subsidiary in this Agreement or any other Loan
Document, or in any report, certificate, financial statement or other information furnished
pursuant to or in connection with this Agreement or any other Loan Document, shall
prove to have been incorrect in any material respect when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.04 (with respect to the existence
of Holdings or the Borrower) or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in this Agreement or any other Loan Document (other than those
specified in clause (a), (b) or (d) of this Section), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative Agent or
any Lender to the Borrower;
(f) Holdings, the Borrower or any Restricted Subsidiary shall fail to make any
payment (whether of principal, interest, premium or otherwise and regardless of amount)
in respect of any Material Indebtedness when and as the same shall become due and
payable (after giving effect to any applicable grace period in respect of such failure under
the documentation representing such Material Indebtedness);
(g) any event or condition occurs that results in any Material Indebtedness
becoming due or being terminated or required to be prepaid, repurchased, redeemed or
defeased prior to its scheduled maturity or that enables or permits (with all applicable
grace periods in respect of such event or condition under the documentation representing
such Material Indebtedness having expired) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf, or, in the case of any Hedging
Agreement, the applicable counterparty, to cause any Material Indebtedness to become
due, or to terminate or require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (i)
any secured Indebtedness that becomes due as a result of the voluntary sale, transfer or
other disposition of the assets securing such Indebtedness (to the extent such sale, transfer
or other disposition is not prohibited under this Agreement) or (ii) any Indebtedness that
becomes due as a result of a voluntary refinancing thereof permitted under Section 6.01;
(h) except as otherwise provided in Section 7.02, an involuntary proceeding shall
be commenced or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of Holdings, the Borrower or any Restricted
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, State or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Holdings, the Borrower or any Restricted Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) except as otherwise provided in Section 7.02, Holdings, the Borrower or any
Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation (other than any liquidation permitted under Section 6.03(a)(iv)),
reorganization or other relief under any Federal, State or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or
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fail to contest in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Section, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for Holdings, the Borrower
or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such proceeding or
(v) make a general assignment for the benefit of creditors, or the board of directors (or
similar governing body) of Holdings, the Borrower or any Restricted Subsidiary (or any
committee thereof) shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to above in this clause (i) or in clause (h) of this
Section;
(j) Holdings, the Borrower or any Restricted Subsidiary shall admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in
excess of $5,000,000 (other than any such judgment covered by insurance (other than
under a self-insurance program) to the extent a claim therefor has been made in writing
and liability therefor has not been denied by the insurer) shall be rendered against
Holdings, the Borrower, any Restricted Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of Holdings, the Borrower or any
Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, when taken together with all other
ERISA Events that have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) any Lien purported to be created under any Security Document shall cease
to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any
material Collateral, with the priority required by the applicable Security Document,
except as a result of (i) the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents, (ii) the release thereof as provided in
Section 9.14 or (iii) the Administrative Agent’s failure to (A) maintain possession of any
stock certificate, promissory note or other instrument delivered to it under the Collateral
Agreement or (B) file Uniform Commercial Code continuation statements;
(n) any material Security Document shall cease to be, or shall be asserted by any
Loan Party not to be, in full force and effect, except as a result of the release thereof as
provided in the applicable Loan Document or Section 9.14;
(o) any Guarantee purported to be created under any Loan Document shall cease
to be, or shall be asserted by any Loan Party not to be, in full force and effect, except as a
result of the release thereof as provided in the applicable Loan Document or Section 9.14;
or
(p) a Change in Control shall occur;
then, and in every such event (other than an event with respect to Holdings or the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of the Required Lenders shall, by
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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 (but ratably as
among the Classes of Loans and the Loans of each Class at such time outstanding), 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 obligations of the Borrower hereunder, shall
become due and payable immediately and (iii) require the deposit of cash collateral in respect of
LC Exposure as provided in Section 2.05(i), in each case, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by Holdings and the Borrower; and in
the case of any event with respect to Holdings or the Borrower described in clause (h) or (i) of
this Section, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other obligations of the
Borrower hereunder, shall immediately and automatically become due and payable and the
deposit of such cash collateral in respect of LC Exposure shall immediately and automatically
become due, in each case, without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by Holdings and the Borrower.
SECTION 7.02. Exclusion of Certain Subsidiaries. Solely for the purposes of
determining whether a Default has occurred under clause (h) or (i) of Section 7.01, any reference
in any such paragraph to any Restricted Subsidiary shall be deemed not to include any Restricted
Subsidiary affected by any event or circumstance referred to in such paragraph that (a) did not, as
of the last day of the fiscal quarter of the Borrower most recently ended, have consolidated total
assets that equal 5.0% or more of the consolidated total assets of Holdings and (b) did not have
revenues during the four fiscal quarter period of the Borrower most recently ended equal to or
greater than 5.0% of the consolidated revenues of Holdings; provided that if it is necessary to
exclude more than one Restricted Subsidiary from clause (h) or (i) of Section 7.01 pursuant to
this paragraph in order to avoid a Default, the aggregate consolidated assets of all such excluded
Restricted Subsidiaries as of such last day may not exceed 5.0% of the consolidated total assets of
Holdings and the aggregate consolidated revenues of all such excluded Restricted Subsidiaries for
such four fiscal quarter period may not exceed 5.0% of the consolidated revenues of Holdings.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity
named as Administrative Agent in the heading of this Agreement and its successors to serve as
administrative agent and collateral agent under the Loan Documents and authorizes the
Administrative Agent to take such actions and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such actions and
powers as are reasonably incidental thereto. In addition, to the extent required under the laws of
any jurisdiction other than the United States of America, each of the Lenders and the Issuing
Banks hereby grants to the Administrative Agent any required powers of attorney to execute any
Security Document governed by the laws of such jurisdiction on such Lender’s or such Issuing
Bank’s behalf. 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. Instead, such term is used as a matter of market custom and is
intended to create or reflect only an administrative relationship between contracting parties.
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The Person serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing
Bank and may exercise the same as though it were not the Administrative Agent, and such Person
and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with
Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders or the
Issuing Banks.
The Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in
nature. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary
action or to exercise any discretionary power, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the Lenders
as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary,
under the circumstances as provided in the Loan Documents); provided that the Administrative
Agent shall not be required to take any action that, in its opinion, could expose the Administrative
Agent to liability or be contrary to this Agreement or any other Loan Document or applicable
law, and (c) 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 Holdings, the Borrower, any Subsidiary or any other 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. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the
absence of its own gross negligence or wilful misconduct (such absence to be presumed unless
otherwise determined by a court of competent jurisdiction by a final and nonappealable
judgment). 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 Holdings, the Borrower, a Lender or an Issuing Bank, 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 this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth in this
Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency,
validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in this Agreement or any other Loan Document,
other than to confirm receipt of 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. Notwithstanding anything herein to the
contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or
expense suffered by the Borrower or any Lender as a result of, any determination of the
Revolving Exposure or the component amounts thereof or of the Weighted Average Yield.
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The Administrative Agent shall be entitled to rely, and shall not incur any
liability for relying, upon any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed or sent or otherwise
authenticated by the proper Person (whether or not such Person in fact meets the requirements set
forth in the Loan Documents for being the signatory, sender or authenticator thereof). The
Administrative Agent also shall be entitled to rely, and shall not incur any liability for relying,
upon any statement made to it orally or by telephone and believed by it to be made by the proper
Person (whether or not such Person in fact meets the requirements set forth in the Loan
Documents for being the signatory, sender or authenticator thereof), and may act upon any such
statement prior to receipt of written confirmation thereof. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a
Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing
Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender
or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary
from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any of and all 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 and all their duties and exercise their rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and
shall apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent. The Administrative Agent shall
not be responsible for the negligence or misconduct of any sub-agents except to the extent that a
court of competent jurisdiction determines in a final and nonappealable judgment that the
Administrative Agent acted with gross negligence or wilful misconduct in the selection of such
sub-agents.
Subject to the terms of this paragraph, the Administrative Agent may resign at
any time from its capacity as such. In connection with such resignation, the Administrative
Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Borrower.
Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the
consent of the Borrower (which shall not be unreasonably withheld or delayed), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the
Issuing Banks, 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. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents. The fees payable by Holdings and the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing,
in the event no successor Administrative Agent shall have been so appointed and shall have
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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 Issuing Banks and the Borrower, whereupon, on the date of
effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents;
provided that, solely for purposes of maintaining any security interest granted to the
Administrative Agent under any Security Document for the benefit of the Secured Parties, the
retiring Administrative Agent shall continue to be vested with such security interest as collateral
agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of
the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a
successor Administrative Agent is appointed and accepts such appointment in accordance with
this paragraph (it being understood and agreed that the retiring Administrative Agent shall have
no duty or obligation to take any further action under any Security Document, including any
action required to maintain the perfection of any such security interest), and (b) the Required
Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent; provided that (i) 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 (ii) all notices and other
communications required or contemplated to be given or made to the Administrative Agent shall
also directly be given or made to each Lender and each Issuing Bank. Following the
effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions
of this Article 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 it was acting as Administrative Agent
and in respect of the matters referred to in the proviso under clause (a) above.
Each Lender and each Issuing Bank acknowledges that it has, independently and
without reliance upon the Administrative Agent, the Arrangers or any other Lender or Issuing
Bank, 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. Each Lender and each Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Arrangers or any other
Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such
documents and information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.
Each Lender, by delivering its signature page to the Amendment and Restatement
Agreement on the Restatement Effective 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, this
Agreement and each other 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 Restatement
Effective Date.
Except with respect to the exercise of setoff rights of any Lender in accordance
with Section 9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency
proceeding, no Secured Party shall have any right individually to realize upon any of the
Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all
powers, rights and remedies under the Loan Documents may be exercised solely by the
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Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In
the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a
public or private sale or other disposition, the Administrative Agent or any Lender may be the
purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the
Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender
or Lenders in its or their respective individual capacities unless the Required Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at any such public sale,
to use and apply any of the Loan Document Obligations as a credit on account of the purchase
price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at
such sale or other disposition.
In furtherance of the foregoing and not in limitation thereof, no Hedging
Agreement the obligations under which constitute Secured Hedging Obligations will create (or be
deemed to create) in favor of any Secured Party that is a party thereto any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under
this Agreement or any other Loan Document except as expressly provided in the Collateral
Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to any
such Hedging Agreement shall be deemed to have appointed the Administrative Agent to serve as
administrative agent and collateral agent under the Loan Documents and agreed to be bound by
the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this
paragraph.
The Secured Parties irrevocably authorize the Administrative Agent, at its option
and in its discretion, 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 6.02(e). 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.
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 or any LC
Disbursement shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Administrative Agent shall have made any demand on the
Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding
or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, LC Exposure and all other Obligations that are
owing and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent
(including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in
any such proceeding is hereby authorized by each Lender, each Issuing Bank 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
Issuing Banks 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).
Notwithstanding anything herein to the contrary, neither the Arrangers nor any
Person named on the cover page of this Agreement as a Co-Syndication Agent shall have any
duties or obligations under this Agreement or any other Loan Document (except in its capacity, as
applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the
indemnities provided for hereunder.
The provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders and the Issuing Banks, 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, none of
Holdings, the Borrower or any Subsidiary shall have any rights as a third party beneficiary of 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 the Guarantees of the Obligations provided under
the Loan Documents, to have agreed to the provisions of this Article.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) General. Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to paragraph (b) of
this Section), 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 fax, as follows:
(i) if to Holdings or the Borrower, to it at Vectrus Systems Corporation, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇, Senior
Vice President and Chief Financial Officer (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇; email:
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇), with a copy to Vectrus Systems Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice
President, Chief Legal Officer and Corporate Secretary (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇; email:
▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇);
(ii) if to the Administrative Agent in respect of Borrowings denominated in
dollars and all other matters, to it at JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇; email:
▇▇▇.▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇@▇▇▇▇▇▇▇▇.▇▇▇), with a copy to JPMorgan Chase Bank, N.A.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇);
(iii) if to the Administrative Agent in respect of Borrowings denominated in any
Permitted Foreign Currency, to it at ▇.▇. ▇▇▇▇▇▇ Europe Limited, Loans Agency ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ E145JP, United Kingdom, Attention of
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Loans Agency (Fax No: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇; Email:
▇▇▇▇_▇▇▇_▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇);
(iv) if to any Issuing Bank, to it at its address (or fax number) most recently
specified by it in a notice delivered to the Administrative Agent, Holdings and the
Borrower (or, in the absence of any such notice, to the address (or fax number) set forth
in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or
is an Affiliate thereof);
(v) if to the Swingline Lender, to it at (A) in the case of JPMorgan Chase Bank,
N.A., JPMorgan Chase Bank, N.A., Loan and Agency Services Group, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇; email: ▇▇▇.▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇@▇▇▇▇▇▇▇▇.▇▇▇), with a copy to
JPMorgan Chase Bank, N.A., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇); and (B) in the case
of any other Swingline Lender, to it at its address (or fax number) set forth in the
applicable joinder agreement contemplated by the definition of “Swingline Lenders”; and
(vi) if to any other Lender, to it at its address (or fax number) set forth in its
Administrative Questionnaire.
Notices and communications sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent by fax shall be
deemed to have been given when sent (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of business on the next Business
Day for the recipient). Notices delivered through electronic communications, to the extent
provided in paragraph (b) of this Section, shall be effective as provided in such paragraph.
(b) Electronic Communications. Notices and other communications to the
Lenders and the Issuing Banks hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet and intranet websites) pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to notices
under Article II to any Lender or any Issuing Bank if such Lender or such Issuing Bank, as
applicable, has notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent, Holdings 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 or may
be rescinded by any such Person by notice to each other such Person.
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 acknowledgment from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgment) and (ii) notices and other
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 therefore; provided that, for both clauses (i) and (ii) above, if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business
Day for the recipient.
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(c) Change of Address, etc. Any party hereto may change its address or fax
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platform. Holdings and the Borrower agree that the Administrative
Agent may, but shall not be obligated to, make any Communications by posting such
Communication on Debt Domain, IntraLinks, SyndTrak or a substantially similar electronic
transmission system (the “Platform”). The Platform is provided “as is” and “as available”.
Neither the Administrative Agent nor any of its Related Parties warrants, or shall be deemed
to warrant, as to the adequacy of the Platform and each such Person expressly disclaims any
liability for errors or omissions in 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, or shall be deemed to be made, by the Administrative Agent or any of its Related
Parties in connection with the Communications or the Platform.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, any Issuing Bank 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
Issuing Banks 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 any other Loan Document or consent to any departure by any
Loan Party 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 specific purpose for which given. Without limiting the generality of
the foregoing, the execution and delivery of this Agreement, the making of a Loan or the
issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing
Bank may have had notice or knowledge of such Default at the time. No notice or demand on
Holdings or the Borrower in any case shall entitle Holdings or the Borrower to any other or
further notice or demand in similar or other circumstances.
(b) Except as provided in Sections 2.14, 2.21, 2.22, 2.23 and 9.02(c), none of
this Agreement, any other Loan Document or any provision hereof or thereof may be waived,
amended or modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by Holdings, the Borrower, the Administrative Agent and
the Required Lenders and, in the case of any other Loan Document, pursuant to an agreement
or agreements in writing entered into by the Administrative Agent and the Loan Party or
Loan Parties that are parties thereto, in each case 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, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, in
each case without the written consent of each Lender affected thereby, (iii) postpone the
scheduled maturity date of any Loan, or the date of any scheduled payment of the principal
amount of any Term Loan under Section 2.10 or the applicable Incremental Facility
Amendment or the required date of reimbursement of any LC Disbursement, or any date for
the payment of any interest or 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 affected thereby, (iv) change any of the provisions
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of this Section or the percentage set forth in the definition of the term “Required Lenders” or
any other provision of this Agreement or any other Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or otherwise
modify any rights thereunder or make any determination or grant any consent thereunder,
without the written consent of each Lender (or each Lender of such Class, as applicable);
provided that, with the consent of the Required Lenders, the provisions of this Section and the
definition of the term “Required Lenders” may be amended to include references to any new
class of loans created under this Agreement (or to lenders extending such loans) on
substantially the same basis as the corresponding references relating to the existing Classes of
Loans or Lenders, (v) release the Guarantee provided by Holdings under the Collateral
Agreement or release all or substantially all of the value of the Guarantees provided by the
Subsidiary Loan Parties under the Collateral Agreement, in each case without the written
consent of each Lender (except as expressly provided in Section 9.14 or the Collateral
Agreement (including any such release by the Administrative Agent in connection with any
sale or other disposition of any Subsidiary upon the exercise of remedies under the Security
Documents), it being understood and agreed that an amendment or other modification of the
type of obligations guaranteed under the Collateral Agreement shall not be deemed to be a
release of any Guarantee), (vi) release all or substantially all the Collateral from the Liens of
the Security Documents without the written consent of each Lender (except as expressly
provided in Section 9.14 or the applicable Security Document (including any such release by
the Administrative Agent in connection with any sale or other disposition of the Collateral
upon the exercise of remedies under the Security Documents), it being understood and agreed
that an amendment or other modification of the type of obligations secured by the Security
Documents shall not be deemed to be a release of the Collateral from the Liens of the
Security Documents), (vii) change any provisions of this Agreement or any other Loan
Document in a manner that by its terms adversely affects the rights in respect of Collateral
securing the obligations owed to, or payments due to, Lenders holding Loans of any Class
differently than those holding Loans of any other Class, without the written consent of
Lenders representing a Majority in Interest of each affected Class or (viii) change the rights
of the Tranche A Term Lenders to decline mandatory prepayments as provided in
Section 2.11 or the rights of any Additional Lenders of any Class to decline mandatory
prepayments of Term Loans of such Class as provided in the applicable Incremental Facility
Amendment, without the written consent of Tranche A Term Lenders or Additional Lenders
of such Class, as applicable, holding a majority of the outstanding Tranche A Term Loans or
Incremental Term Loans of such Class, as applicable; provided further that (A) no such
agreement shall amend, modify, extend or otherwise affect the rights or obligations of the
Administrative Agent, any Issuing Bank or any Swingline Lender without the prior written
consent of the Administrative Agent, such Issuing Bank or such Swingline Lender, as
applicable, (B) any waiver, amendment or other modification of this Agreement that by its
terms affects the rights or duties under this Agreement of the Lenders of one or more Classes
(but not the Lenders of any other Class) may be effected by an agreement or agreements in
writing entered into by Holdings, the Borrower and the requisite number or percentage in
interest of each affected Class of Lenders that would be required to consent thereto under this
Section if such Class of Lenders were the only Class of Lenders hereunder at the time and
(C) if the terms of any waiver, amendment or other modification of this Agreement or any
other Loan Document provide that any Class of Loans (together with all accrued interest
thereon and all accrued fees payable with respect to the Commitments of such Class) will be
repaid or paid in full, and the Commitments of such Class (if any) terminated, as a condition
to the effectiveness of such waiver, amendment or other modification, then so long as the
Loans of such Class (together with such accrued interest and fees) are in fact repaid or paid in
full and such Commitments are in fact terminated, in each case prior to or substantially
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simultaneously with the effectiveness of such amendment, then such Loans and
Commitments shall not be included in the determination of the Required Lenders with respect
to such amendment. Notwithstanding any of the foregoing, (1) no consent with respect to any
waiver, amendment or other modification of this Agreement or any other Loan Document
shall be required of any Defaulting Lender, except with respect to any waiver, amendment 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 affected by such waiver,
amendment or other modification, (2) any provision of this Agreement or any other Loan
Document may be amended by an agreement in writing entered into by the Borrower and the
Administrative Agent to cure any ambiguity, omission, mistake, defect or inconsistency so
long as, in each case, the Lenders shall have received at least five Business Days prior written
notice thereof and the Administrative Agent shall not have received, within five Business
Days of the date of such notice to the Lenders, a written notice from (x) the Required Lenders
stating that the Required Lenders object to such amendment or (y) if affected by such
amendment, any Swingline Lender or any Issuing Bank stating that it objects to such
amendment, (3) this Agreement may be amended to provide for Incremental Extensions of
Credit in the manner contemplated by Section 2.21, the extension of the Maturity Date as
provided in Section 2.22 and the incurrence of Refinancing Revolving Commitments and
Refinancing Term Loans as provided in Section 2.23, in each case without any additional
consents and (4) no agreement referred to in the immediately preceding sentence shall waive
any condition set forth in Section 4.03 without the written consent of the Majority in Interest
of the 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 4.03) or any other Loan Document, including any amendment of
an 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 any
condition set forth in Section 4.03).
(c) In connection with any proposed amendment, modification, waiver or
termination (a “Proposed Change”) requiring the consent of all Lenders or all affected
Lenders, if the consent of the Required Lenders (and, to the extent any Proposed Change
requires the consent of Lenders holding Loans of any Class pursuant to clause (iv) of
paragraph (b) of this Section, the consent of a majority in interest of the outstanding Loans
and unused Commitments of such Class) to such Proposed Change is obtained, but the
consent to such Proposed Change of other Lenders whose consent is required is not obtained
(any such Lender whose consent is not obtained as described in paragraph (b) of this Section
being referred to as a “Non-Consenting Lender” for purposes of this clause (c)), then the
Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender
and the Administrative Agent, require such Non-Consenting Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in Section
9.04), all its interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) if the Administrative Agent is not such Non-Consenting
Lender, the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, each Issuing Bank and each
Swingline Lender), which consent shall not unreasonably be withheld or delayed, (ii) such
Non-Consenting Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee
(in the case of such principal and accrued interest and fees) or the Borrower (in the case of all
other amounts, (iii) the Borrower or such assignee shall have paid to the Administrative
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Agent the processing and recordation fee specified in Section 9.04(b), (iv) such assignment
does not conflict with applicable law and (v) the assignee shall have given its consent to such
Proposed Change and, as a result of such assignment and delegation and any
contemporaneous assignments and delegations and consents, such Proposed Change can be
effected. Any assignment required pursuant to this Section 9.02(c) may be effected pursuant
to an Assignment and Assumption executed by the Borrower, the Administrative Agent and
the assignee, and the Lender required to make such assignment shall not be required to be a
party to such Assignment and Assumption.
(d) Notwithstanding anything herein to the contrary, the Administrative
Agent may, without the consent of any Secured Party, consent to a departure by any Loan
Party from any covenant of such Loan Party set forth in this Agreement, the Collateral
Agreement or any other Security Document to the extent such departure is consistent with the
authority of the Administrative Agent set forth in Section 5.11, the definition of the term
“Collateral and Guarantee Requirement” or as otherwise expressly provided in the Loan
Documents.
(e) The Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute waivers, amendments or other modifications on behalf of
such Lender. Any waiver, amendment or other modification effected in accordance with this
Section, shall be binding upon each Person that is at the time thereof a Lender and each
Person that subsequently becomes a Lender.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) Holdings and the
Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent, the Arrangers, the Co-Syndication Agents and their respective Affiliates,
including the reasonable and documented fees, charges and disbursements of one firm of counsel
for the foregoing (and, if reasonably necessary, one firm of local counsel in each relevant
jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions)
for the foregoing), in connection with the structuring, arrangement and syndication of the credit
facilities provided for herein and any credit or similar facility refinancing or replacing, in whole
or in part, any of the credit facilities provided for herein, as well as the preparation, negotiation,
execution, delivery and administration of this Agreement, the other Loan Documents or any
waiver, amendment or modification 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 any Issuing Bank in connection with the
issuance, amendment, renewal 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 Issuing Bank or any Lender, including the reasonable and documented
fees, charges and disbursements of one firm of counsel for the foregoing, taken as a whole (and, if
reasonably necessary, one firm of local counsel in each relevant jurisdiction (which may include a
single firm of special counsel acting in multiple jurisdictions) for the foregoing) and, in the case
of an actual or perceived conflict of interest where any such Person affected by such conflict
informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of
counsel for such affected Person (and, if reasonably necessary, one firm of local counsel in each
relevant jurisdiction (which may include a single firm of special counsel acting in multiple
jurisdictions) for such affected Person), in connection with the enforcement or protection of its
rights in connection with the Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-
pocket expenses incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
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(b) Holdings and the Borrower shall indemnify the Administrative Agent,
the Arrangers, the Co-Syndication Agents, the Lenders, the Issuing Banks 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,
penalties, liabilities and related expenses (including the reasonable and documented fees,
charges and disbursements of one firm of counsel for all such Indemnitees, taken as a whole,
and, if reasonably necessary, of one firm of local counsel in each relevant jurisdiction (which
may include a single firm of special counsel acting in multiple jurisdictions) for all such
Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest
where the Indemnitee affected by such conflict informs the Borrower of such conflict and
thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee
and, if reasonably necessary, of a single firm of local counsel in each appropriate jurisdiction
(which may include a single firm of special counsel acting in multiple jurisdictions) for such
affected Indemnitee)), incurred by or asserted against such Indemnitees arising out of, in
connection with or as a result of any actual or prospective claim, litigation, investigation or
proceeding relating to (i) the structuring, arrangement and syndication of the credit facilities
provided for herein, the preparation, negotiation, execution, delivery and administration of
this Agreement, the other Loan Documents or any other agreement or instrument
contemplated hereby or thereby, the performance by the parties to this Agreement or the other
Loan Documents of their respective obligations hereunder or thereunder or the consummation
of the Transactions or any other transactions contemplated hereby or thereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing
Bank 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)
or (iii) any actual or alleged presence or Release of Hazardous Materials on, at, to or from
any Mortgaged Property or any other property currently or formerly owned or operated by
Holdings, the Borrower or any Subsidiary, or any other Environmental Liability related in
any way to Holdings, the Borrower or any Subsidiary, in each case, whether based on
contract, tort or any other theory and whether initiated against or by any party to this
Agreement or any other Loan Document, any Affiliate of any of the foregoing or any third
party (and regardless of whether any Indemnitee is a party thereto); provided that the
foregoing indemnity shall not, as to any Indemnitee, apply to any losses, claims, damages,
liabilities or related expenses to the extent they are found in a final and non-appealable
judgment of a court of competent jurisdiction to have resulted from (A) the bad faith, wilful
misconduct or gross negligence of such Indemnitee or any such Indemnitee’s Related Parties,
(B) a claim brought by Holdings, the Borrower or any Subsidiary against such Indemnitee for
material breach of such Indemnitee’s obligations under this Agreement or any other Loan
Document or (C) a proceeding that does not involve an act or omission by Holdings, the
Borrower or any of their respective Affiliates and that is brought by an Indemnitee against
any other Indemnitee (other than a proceeding that is brought against the Administrative
Agent or any other agent or any Arranger in its capacity or in fulfilling its roles as an agent or
arranger hereunder or any similar role with respect to the Indebtedness incurred or to be
incurred hereunder). This paragraph shall not apply with respect to Taxes other than any
Taxes that represent losses, claims or damages arising from any non-Tax claim.
(c) To the extent that Holdings and the Borrower fail to indefeasibly pay any
amount required to be paid by them under paragraph (a) or (b) of this Section to the
Administrative Agent, any Issuing Bank, any Swingline Lender or any Related Party of any
of the foregoing (and without limiting their obligation to do so), each Lender severally agrees
to pay to the Administrative Agent, such Issuing Bank, such Swingline Lender or such
Related Party, as applicable, such Lender’s pro rata share (determined as of the time that the
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applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it
being understood and agreed 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 applicable, was
incurred by or asserted against the Administrative Agent, such Issuing Bank or such
Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent, any Issuing Bank or any Swingline Lender in connection
with such capacity; provided further that, with respect to such unpaid amounts owed to any
Issuing Bank or any Swingline Lender in its capacity as such, or to any Related Party of any
of the foregoing acting for any Issuing Bank or any Swingline Lender in connection with
such capacity, only the Revolving Lenders shall be required to pay such unpaid amounts. For
purposes of this Section, a Lender’s “pro rata share” shall be determined by its share of the
sum of the total Revolving Exposure, unused Revolving Commitments and, except for
purposes of the second proviso of the immediately preceding sentence, the outstanding Term
Loans and unused Term Commitments, in each case at that time. The obligations of the
Lenders under this paragraph are subject to the last sentence of Section 2.02(a) (which shall
apply mutatis mutandis to the Lenders’ obligations under this paragraph).
(d) To the fullest extent permitted by applicable law, (i) neither Holdings nor
the Borrower shall assert, or permit any of their respective Affiliates or Related Parties to
assert, and each hereby waives, any claim against any Indemnitee 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), except to the extent such damages are found in a final and non-appealable judgment
of a court of competent jurisdiction to have resulted from the bad faith, wilful misconduct or
gross negligence of any Indemnitee or Related Party of any Indemnitee or (ii) neither any
Indemnitee nor any other party to this Agreement or any other Loan Document shall be liable
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 or Letter of Credit or the use of the proceeds thereof; provided that nothing in this
clause (ii) shall limit the expense reimbursement and indemnification obligations of Holdings
and the Borrower set forth in paragraphs (a) and (b) of this Section 9.03.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) General. 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 Issuing Bank that issues
any Letter of Credit), except that (i) neither Holdings nor the Borrower may assign, delegate or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender (and any attempted assignment, delegation or transfer
by Holdings or the Borrower without such consent shall be null and void) and (ii) no Lender may
assign, delegate 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 Issuing Bank that issues any Letter of Credit), Participants (to the
extent provided in paragraph (c) of this Section), the Arrangers, the Co-Syndication Agents and,
to the extent expressly contemplated hereby, the Related Parties of any of the Administrative
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Agent, any Arranger, any Co-Syndication Agent, any Issuing Bank and any Lender) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. (i) Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign and delegate to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld or delayed) of (A) the Borrower;
provided that no consent of the Borrower shall be required (1) (x) with respect to Term
Commitments or Term Loans, for an assignment and delegation to a Lender, an Affiliate of a
Lender or an Approved Fund and (y) with respect to Revolving Commitments or Revolving
Loans, for an assignment and delegation to a Revolving Lender, an Affiliate of a Revolving
Lender or an Approved Fund in respect of a Revolving Lender and (2) if an Event of Default
has occurred and is continuing, for any other assignment and delegation; provided further that
the Borrower shall be deemed to have consented to any such assignment and delegation
unless it shall object thereto by written notice to the Administrative Agent within five
Business Days after having received notice thereof, (B) the Administrative Agent; provided
that no consent of the Administrative Agent shall be required for an assignment and
delegation of all or any portion of a Term Commitment or Term Loan to a Lender, an
Affiliate of a Lender or an Approved Fund, (C) each Issuing Bank, in the case of any
assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s
obligations in respect of its LC Exposure and (D) each Swingline Lender, in the case of any
assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s
obligations in respect of its Swingline Exposure.
(ii) Assignments and delegations shall be subject to the following additional
conditions: (A) except in the case of an assignment and delegation to a Lender, an
Affiliate of a Lender or an Approved Fund or an assignment and delegation 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 and delegation (determined as of the trade date specified in the Assignment
and Assumption with respect to such assignment and delegation or, if no trade date is so
specified, as of the date the Assignment and Assumption with respect to such assignment
and delegation is delivered to the Administrative Agent) shall not be less than $5,000,000
or, in the case of Term Loans, $1,000,000 (treating contemporaneous assignments by or
to two or more Approved Funds as a single assignment for purposes of such minimum
transfer amount), unless each of the Borrower and the Administrative Agent otherwise
consents (such consent not to be unreasonably withheld or delayed); provided that no
such consent of the Borrower shall be required if an Event of Default has occurred and is
continuing, (B) each partial assignment and delegation shall be made as an assignment
and delegation of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement; provided that this clause (B) shall not be construed to prohibit the
assignment and delegation 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 and delegation shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500;
provided that (1) only one such processing and recordation fee shall be payable in the
event of simultaneous assignments and delegations by or to two or more Approved
Funds, (2) the Administrative Agent may waive or reduce such fee in its sole discretion
and (3) with respect to any assignment and delegation pursuant to Section 2.19(b) or
9.02(c), the parties hereto agree that such assignment and delegation may be effected
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pursuant to an Assignment and Assumption executed by the Borrower, the
Administrative Agent and the assignee and that the Lender required to make such
assignment and delegation need not be a party thereto, and (D) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent any tax forms required by
Section 2.17(f) and an Administrative Questionnaire in which the assignee designates one
or more credit contacts to whom all syndicate-level information (which may contain
MNPI) will be made available and who may receive such information in accordance with
the assignee’s compliance procedures and applicable law, including Federal, State and
foreign securities laws.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) 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 and delegated 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 and delegated by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment
and Assumption covering all 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 (and subject to the obligations and limitations of) Sections 2.15, 2.16,
2.17 and 9.03 and to any fees payable hereunder that have accrued for such Lender’s
account but have not yet been paid). Any assignment, delegation or other transfer by a
Lender of rights or obligations under this Agreement that does not comply with this
Section shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 9.04(c).
(iv) The Administrative Agent, acting solely 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 stated interest) of the
Loans and LC Disbursements 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 Holdings, the Borrower, the Administrative Agent, the Issuing Banks
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 and, as to entries pertaining to it, any Issuing Bank or any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon receipt by the Administrative Agent of a duly completed Assignment
and Assumption executed by an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire and any tax forms required by Section 2.17(f)
(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 and delegation 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 the Administrative Agent shall not be
required to accept such Assignment and Assumption or so record the information
contained therein if the Administrative Agent reasonably believes that such Assignment
and Assumption lacks any written consent required by this Section or is otherwise not in
proper form, it being acknowledged that the Administrative Agent shall have no duty or
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obligation (and shall incur no liability) with respect to obtaining (or confirming the
receipt) of any such written consent or with respect to the form of (or any defect in) such
Assignment and Assumption, any such duty and obligation being solely with the
assigning Lender and the assignee. No assignment or delegation shall be effective for
purposes of this Agreement unless it has been recorded in the Register as provided in this
paragraph and, following such recording, unless otherwise determined by the
Administrative Agent (such determination to be made in the sole discretion of the
Administrative Agent, which determination may be conditioned on the consent of the
assigning Lender and the assignee), shall be effective notwithstanding any defect in the
Assignment and Assumption relating thereto. Each assigning Lender and the assignee,
by its execution and delivery of an Assignment and Assumption, shall be deemed to have
represented to the Administrative Agent that all written consents required by this Section
with respect thereto (other than the consent of the Administrative Agent) have been
obtained and that such Assignment and Assumption is otherwise duly completed and in
proper form, and each assignee, by its execution and delivery of an Assignment and
Assumption, shall be deemed to have represented to the assigning Lender and the
Administrative Agent that such assignee is an Eligible Assignee.
(vi) The words “execution”, “signed”, “signature” and words of like import in
any Assignment and Assumption shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as applicable, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act or any other similar State
laws based on the Uniform Electronic Transactions Act.
(c) Participations. Any Lender may, without the consent of the Borrower,
the Administrative Agent, any Issuing Bank or any Swingline Lender, sell participations to
one or more Eligible Assignees (each, a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its Commitments
and Loans of any Class); 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) Holdings, the Borrower, the
Administrative Agent, the Issuing Banks 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 or any other Loan Document; 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 or requires the approval of all the Lenders. Holdings and the
Borrower agree that 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 and agreed that the documentation required under
Section 2.17(f) shall be delivered to the participating Lender)) to the same extent as if it were
a Lender and had acquired its interest by assignment and delegation pursuant to paragraph (b)
of this Section; provided that such Participant (A) agrees to 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
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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 agrees, at the Borrower’s request and expense, to 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 agrees to
be subject to Section 2.18(c) 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 stated interest) of each Participant’s interest in the Loans or other
obligations under this Agreement or any other Loan Document (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the
Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations
under this Agreement or any other Loan Document) to any Person except to the extent that
such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or
other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error,
and such Lender shall treat each Person whose name is recorded in the Participant Register as
the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as
Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) Certain Pledges. Any Lender may, without the consent of the Borrower,
the Administrative Agent, any Issuing Bank or any Swingline Lender, 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 or any other central bank having jurisdiction over such Lender, 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) Purchasing Borrower Parties. Notwithstanding anything else to the
contrary contained in this Agreement (including the definition of “Eligible Assignee”), any
Lender may assign and delegate all or a portion of its Term Loans to any Purchasing
Borrower Party (x) through open market purchases made by such Purchasing Borrower Party
on a non-pro rata basis (subject to clause (v) below) or (y) otherwise pursuant to an Auction
Purchase Offer in accordance with clauses (i) through (vii) below (which assignment and
delegation, in the case of the foregoing clauses (x) and (y), will not constitute a prepayment
of Loans for any purposes of this Agreement and the other Loan Documents); provided that,
in the case of assignments and delegations made pursuant to the foregoing clause (y):
(i) no Default or Event of Default has occurred and is continuing or would result
therefrom;
(ii) each Auction Purchase Offer shall be conducted in accordance with the
procedures, terms and conditions set forth in this paragraph and the Auction Procedures;
(iii) the assigning Lender and Purchasing Borrower Party purchasing such
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Lender’s Term Loans, as applicable, shall execute and deliver to the Administrative
Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and
Assumption;
(iv) for the avoidance of doubt, the Lenders shall not be permitted to assign or
delegate Revolving Commitments or Revolving Exposure to a Purchasing Borrower
Party;
(v) any Term Loans assigned and delegated to any Purchasing Borrower Party
shall be automatically and permanently cancelled upon the effectiveness of such
assignment and delegation and will thereafter no longer be outstanding for any purpose
hereunder (it being understood and agreed that (A) except as expressly set forth in any
such definition, any gains or losses by any Purchasing Borrower Party upon purchase or
acquisition and cancellation of such Term Loans shall not be taken into account in the
calculation of Excess Cash Flow, Consolidated Net Income and Consolidated EBITDA
and (B) any purchase of Term Loans pursuant to this paragraph (e) shall not constitute a
voluntary prepayment of Term Loans for purposes of this Agreement);
(vi) the Purchasing Borrower Party shall either (A) not have any MNPI that has
not been disclosed to the assigning Lender (other than any such Lender that does not wish
to receive MNPI) on or prior to the date of any initiation of an Auction by such
Purchasing Borrower Party or (B) advise the assigning Lender that it cannot make the
statement in the foregoing clause (A), except to the extent that such Lender has entered
into a customary “big boy” letter with Holdings or the Borrower; and
(vii) no Purchasing Borrower Party may use the proceeds from Revolving Loans
to purchase any Term Loans.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in this Agreement and the other 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 this Agreement and the other 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, the Arrangers, any Co-Syndication Agent, any Issuing Bank, any Lender
or any Affiliate of any of the foregoing may have had notice or knowledge of any Default or
incorrect representation or warranty at the time this Agreement or any other Loan Document is
executed and delivered or any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid or any LC Exposure is
outstanding and so long as the Commitments have not expired or terminated. Notwithstanding the
foregoing or anything else to the contrary set forth in this Agreement or any other Loan
Document, in the event that, in connection with the refinancing or repayment in full of the credit
facilities provided for herein, an Issuing Bank shall have provided to the Administrative Agent a
written consent to the release of the Revolving Lenders from their obligations hereunder with
respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the obligations
of the Borrower (and any other account party) in respect of such Letter of Credit having been
collateralized in full by a deposit of cash with such Issuing Bank, or being supported by a letter of
credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and
after such time such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder
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for all purposes of this Agreement and the other Loan Documents, and the Revolving Lenders
shall be deemed to have no participations in such Letter of Credit, and no obligations with respect
thereto, under Section 2.05(d) or 2.05(e). The provisions of Sections 2.15, 2.16, 2.17, 2.18(e),
2.18(f) 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 or prepayment of the
Loans, the expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 9.06. Integration; Effectiveness. This Agreement, the other Loan
Documents and any separate letter agreements with respect to fees payable to the Administrative
Agent or the syndication of the Loans and Commitments constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.03, this Agreement shall become effective on the Restatement Effective Date, and
thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 9.07. Severability. Any provision of this Agreement 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 hereof; 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 and each Issuing Bank is hereby authorized at any time and from time
to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) or other amounts
at any time held and other obligations (in whatever currency) at any time owing by such Lender
or such Issuing Bank to or for the credit or the account of Holdings or the Borrower against any
of and all the obligations then due of Holdings or the Borrower now or hereafter existing under
this Agreement held by such Lender or such Issuing Bank, irrespective of whether or not such
Lender or such Issuing Bank shall have made any demand under this Agreement and although
such obligations of Holdings or the Borrower are owed to a branch or office of such Lender or
such Issuing Bank different from the branch or office holding such deposit or obligated on such
Indebtedness. Each Lender and each Issuing Bank agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application; provided that the failure to
give or any delay in giving such notice shall not affect the validity of any such setoff and
application under this Section. The rights of each Lender and each Issuing Bank under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender or such Issuing Bank may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and any claim, controversy, dispute or cause of action (whether in contract or
tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions
contemplated hereby shall be governed by, and construed in accordance with, the law of the State
of New York.
(b) Each of Holdings and the Borrower irrevocably and unconditionally
agrees that it will not commence any action, litigation or proceeding of any kind or
description, whether in law or equity, whether in contract or in tort or otherwise, against the
Administrative Agent, any Lender, any Issuing Bank or any Related Party of any of the
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foregoing in any way relating to this Agreement or any other Loan Document or the
transactions relating hereto or thereto, in any forum other than the courts of the State of New
York sitting in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, and each of the parties hereto
irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of such
courts and agrees that all claims in respect of any action, litigation or proceeding may be
heard and determined in such New York State court or, to the fullest extent permitted by
applicable law, in such Federal court. Each party hereto agrees that a final judgment in any
such action, litigation or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, any Lender or any Issuing
Bank may otherwise have to bring any action, litigation or proceeding relating to this
Agreement or any other Loan Document against any Loan Party or any of its properties in the
courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives, to the
fullest extent permitted by applicable law, any objection that it may now or hereafter have to
the laying of venue of any action, litigation or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement 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 law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER 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 AND THE OTHER LOAN DOCUMENTS
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 Lenders
and the Issuing Banks agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Related Parties, including accountants,
legal counsel and other agents and advisors, it being understood and agreed that the Persons to
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whom such disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential, (b) to the extent required or requested by
any regulatory authority purporting to have jurisdiction over such Person or its Related Parties
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena
or similar legal process, (d) to any other party 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 confidentiality undertakings
substantially similar to those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its Related Parties) to any Hedging Agreement
relating to Holdings, the Borrower or any Subsidiary and its obligations hereunder or under any
other Loan Document, (g) on a confidential basis to (i) any rating agency in connection with
rating the Borrower or its Subsidiaries or the credit facilities provided for herein or (ii) the CUSIP
Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP
numbers with respect to the credit facilities provided for herein, (h) with the consent of the
Borrower, (i) to the extent such Information (i) becomes publicly available other than as a result
of a breach of this Section or (ii) becomes available to the Administrative Agent, any Lender or
any Issuing Bank or any Affiliate of any of the foregoing on a nonconfidential basis from a
source other than Holdings or the Borrower or (j) to any credit insurance provider relating to the
Borrower or its Obligations. For purposes of this Section, “Information” means all information
received from Holdings or the Borrower relating to Holdings, the Borrower or any Subsidiary or
their businesses, other than any such information that is available to the Administrative Agent,
any Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by Holdings or the
Borrower. 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.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or participation in any LC
Disbursement, together with all fees, charges and other amounts that are treated as interest on
such Loan or LC Disbursement or participation therein under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted
for, charged, taken, received or reserved by the Lender holding such Loan or LC Disbursement or
participation therein 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 or LC Disbursement or participation therein 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 LC Disbursements or participation therein or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the NYFRB Rate to the date of repayment, shall have been
received by such Lender.
SECTION 9.14. Release of Liens and Guarantees. Subject to the reinstatement
provisions set forth in the Collateral Agreement, a Subsidiary Loan Party shall automatically be
released from its obligations under the Loan Documents, and all security interests created by the
Security Documents in Collateral owned by such Subsidiary Loan Party shall be automatically
released, upon the consummation of any transaction permitted by this Agreement as a result of
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which such Subsidiary Loan Party ceases to be a Designated Subsidiary; provided that, 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. Upon any sale or other transfer by
any Loan Party (other than to Holdings, the Borrower or any other Loan Party) of any Collateral
in a transaction permitted under this Agreement, or upon the effectiveness of any written consent
to the release of the security interest created under any Security Document in any Collateral
pursuant to Section 9.02, the security interests in such Collateral created by the Security
Documents shall be automatically released. In connection with any termination or release
pursuant to this Section, the Administrative Agent shall 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. Each of the
Secured Parties irrevocably authorizes the Administrative Agent, at its option and in its
discretion, to effect the releases set forth in this Section.
SECTION 9.15. USA PATRIOT Act Notice. Each Lender, each Issuing Bank
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each
Loan Party that, pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies such Loan Party, which information includes the
name and address of such Loan Party and other information that will allow such Lender, such
Issuing Bank or the Administrative Agent, as applicable, to identify such Loan Party in
accordance with the USA PATRIOT Act, and each Loan Party agrees to provide such
information from time to time to such Lender, such Issuing Bank and the Administrative Agent,
as applicable. This notice is given in accordance with the requirements of the USA PATRIOT
Act and is effective for the Administrative Agent and each Lender.
SECTION 9.16. No Fiduciary Relationship. Each of Holdings and the
Borrower, on behalf of itself and its subsidiaries, agrees that in connection with all aspects of the
transactions contemplated hereby and any communications in connection therewith, Holdings, the
Borrower, the Subsidiaries and their respective Affiliates, on the one hand, and the
Administrative Agent, the Arrangers, the Co-Syndication Agents, the Lenders, the Issuing Banks
and their respective Affiliates, on the other hand, will have a business relationship that does not
create, by implication or otherwise, any fiduciary duty on the part of the Administrative Agent,
the Arrangers, the Co-Syndication Agents, the Lenders, the Issuing Banks or their respective
Affiliates, and no such duty will be deemed to have arisen in connection with any such
transactions or communications. The Administrative Agent, the Arrangers, the Co-Syndication
Agents, the Lenders, the Issuing Banks and their respective Affiliates may be engaged, for their
own accounts or the accounts of customers, in a broad range of transactions that involve interests
that differ from those of Holdings, the Borrower, the Subsidiaries and their respective Affiliates,
and none of the Administrative Agent, the Arrangers, the Co-Syndication Agents, the Lenders,
the Issuing Banks or any of their respective Affiliates has any obligation to disclose any of such
interests to Holdings, the Borrower, the Subsidiaries or any of their respective Affiliates. To the
fullest extent permitted by law, each of Holdings and the Borrower hereby waives and releases
any claims that it or any of its Affiliates may have against the Administrative Agent, the
Arrangers, the Co-Syndication Agents, the Lenders, the Issuing Banks or any of their respective
Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transaction contemplated hereby.
SECTION 9.17. Non-Public Information. (a) Each Lender acknowledges that
all information, including requests for waivers and amendments, furnished by Holdings, the
Borrower or the Administrative Agent pursuant to or in connection with, or in the course of
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administering, this Agreement will be syndicate-level information, which may contain MNPI.
Each Lender represents to Holdings, the Borrower and the Administrative Agent that (i) it has
developed compliance procedures regarding the use of MNPI and that it will handle MNPI in
accordance with such procedures and applicable law, including Federal, State and foreign
securities laws, and (ii) it has identified in its Administrative Questionnaire a credit contact who
may receive information that may contain MNPI in accordance with its compliance procedures
and applicable law, including Federal, State and foreign securities laws.
(b) Holdings, the Borrower and each Lender acknowledge that, if
information furnished by Holdings or the Borrower pursuant to or in connection with this
Agreement is being distributed by the Administrative Agent through the Platform, (i) the
Administrative Agent may post any information that Holdings or the Borrower has indicated
as containing MNPI solely on that portion of the Platform as is designated for Private Side
Lender Representatives and (ii) if Holdings or the Borrower has not indicated whether any
information furnished by it pursuant to or in connection with this Agreement contains MNPI,
the Administrative Agent reserves the right to post such information solely on that portion of
the Platform as is designated for Private Side Lender Representatives. Each of Holdings and
the Borrower agrees to clearly designate all information provided to the Administrative Agent
by or on behalf of Holdings or the Borrower that is suitable to be made available to Public
Side Lender Representatives, and the Administrative Agent shall be entitled to rely on any
such designation by Holdings and the Borrower without liability or responsibility for the
independent verification thereof.
SECTION 9.18. Authorization to Distribute Certain Materials to Public-▇▇▇▇▇▇;
Security Clearances. (a) If the Borrower does not file this Agreement with the SEC, then the
Borrower hereby authorizes the Administrative Agent to distribute the execution version of this
Agreement and the Loan Documents to all Lenders, including their Public Side Lender
Representatives. The Borrower acknowledges its understanding that Lenders, including their
Public Side Lender Representatives, may be trading in securities of the Borrower and its
Affiliates while in possession of the Loan Documents.
(b) To the extent that any of the executed Loan Documents constitutes at any
time material non-public information within the meaning of the Federal and state securities
laws after the date hereof, the Borrower agrees that it will promptly make such information
publicly available by press release or public filing with the SEC.
(c) Notwithstanding anything in this Agreement or any Loan Document to
the contrary, no Loan Party or Restricted Subsidiary shall be required to provide or deliver
any information, give any notice or permit the Administrative Agent or any Lender or any of
their respective representatives to visit and inspect its properties or to examine and make
extracts from its books and records, if the Borrower reasonably determines that providing or
delivering such information, giving such notice or granting such permission could reasonably
be expected to (x) result in the withdrawal, revocation, suspension or other compromise of
any security clearance of Holdings or subsidiary of Holdings or any individual employed by
or otherwise working for Holdings or any subsidiary of Holdings or (y) result in a violation of
any Requirement of Law.
SECTION 9.19. Acknowledgment and Consent to Bail-In of EEA 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 EEA Financial Institution arising under any Loan
137
[[3680601]]
Document, to the extent such liability is unsecured, may be subject to the Write-Down and
Conversion Powers of any EEA 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 an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any party
hereto that is an EEA 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 EEA Financial Institutions, its parent undertaking or a
bridge institution that may be issued to it or otherwise conferred on it, and that such
shares or other instruments of ownership will be accepted by it in lieu of any rights with
respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of
the Write-Down and Conversion Powers of any EEA Resolution Authority.
SECTION 9.20. Restatement of Original Credit Agreement. As of the
Restatement Effective Date, all obligations of the Borrower under the Original Credit Agreement
shall become obligations of the Borrower hereunder, secured by the Security Documents, and the
provisions of the Original Credit Agreement shall be superseded by the provisions hereof. Each
of the parties hereto confirms that the amendment and restatement of the Original Credit
Agreement pursuant to the Amendment and Restatement Agreement shall not constitute a
novation of the Original Credit Agreement.
SECTION 9.21. ▇▇▇▇ Events. Each of the parties hereto acknowledges and
agrees that, if any improved real property is Collateral at such time, any increase, extension or
renewal of any of the Commitments or Loans (excluding (a) any continuation or conversion of
Borrowings, (b) the making of any Revolving Loans or Swingline Loans or (c) the issuance,
renewal or extension of Letters of Credit) shall be subject to (and conditioned upon) the
following: (i) the prior delivery of all flood zone determination certifications, acknowledgements
and evidence of flood insurance and other flood-related documentation with respect to such real
property sufficient to evidence compliance with the Flood Insurance Laws and Regulation H of
the Board of Governors and (ii) the Administrative Agent shall have received written
confirmation from each Lender that flood insurance due diligence and flood insurance
compliance has been completed by such Lender (such written confirmation not to be
unreasonably withheld, conditioned or delayed); provided, however, that solely in the case of any
incurrence of Incremental Term Loans or any Revolving Commitment Increase that would be
subject to this Section 9.21, the condition specified in the immediately preceding clause (ii) will
be deemed to have been satisfied on the date that is 20 days after the delivery of the
documentation specified in the immediately preceding clause (i).
Schedule 1.01
Mortgaged Property
None.
IF "
Schedule 2.01
Commitments
New Tranche A Term Lenders
New Tranche A Term Lender New Tranche A Term Commitment
JPMorgan Chase Bank, N.A. $12,000,000.00
SunTrust Bank $12,000,000.00
U.S. Bank National Association $12,000,000.00
Citibank, N.A. $12,000,000.00
Bank of the West $8,000,000.00
Bank of America, N.A. $8,000,000.00
TD Bank, N.A. $4,000,000.00
Comerica Bank $4,000,000.00
Synovus Bank $4,000,000.00
Banco de Sabadell, S.A., Miami Branch $4,000,000.00
TOTAL: $80,000,000.00
IF "
Revolving Commitment
Revolving Lenders Revolving Commitment
JPMorgan Chase Bank, N.A. $18,000,000.00
SunTrust Bank $18,000,000.00
U.S. Bank National Association $18,000,000.00
Citibank, N.A. $18,000,000.00
Bank of the West $12,000,000.00
Bank of America, N.A. $12,000,000.00
TD Bank, N.A. $6,000,000.00
Comerica Bank $6,000,000.00
Synovus Bank $6,000,000.00
Banco de Sabadell, S.A., Miami Branch $6,000,000.00
TOTAL: $120,000,000.00
IF "
Schedule 3.14
Subsidiaries
Subsidiary Owner Ownership
Vectrus Systems Corporation 9, 10 Vectrus, Inc. 100%
Vectrus Federal Services International, Ltd.
11, 12
Vectrus Systems
Corporation
100%
Vectrus Federal Services GmbH 11,13 Vectrus Systems
Corporation
100%
Vectrus Facility Services GmbH 11, 14 Vectrus Systems
Corporation
100%
Vectrus Mission Systems Ltd. 11, 15 Vectrus Systems
Corporation
100%
Vectrus Services A/S 11, 16 Vectrus Systems
Corporation
100%
Al-Shabaka for Protection Products
Marketing & General Support Services,
LLC 11
Vectrus Systems
Corporation
100%
ITT Federal Services Arabia, Ltd. 11 Vectrus Systems
Corporation
60%
Vectrus Maintenance Services L.L.C. 11 Vectrus Systems
Corporation
49%
Vectrus Services Muscat LLC11 Vectrus Systems
Corporation
Vectrus International LLC
60%
40%
Vectrus International LLC Vectrus Systems
Corporation
100%
__________________________
9 Vectrus Systems Corporation (previously called Exelis Systems Corporation) became a subsidiary of Vectrus,
Inc. upon the consummation of the Spin-Off.
10 Exelis Systems Corporation was renamed Vectrus Systems Corporation effective September 27, 2014.
11 Pledge limited to 65% of the outstanding equity interests.
12 Exelis Federal Services International, Ltd. was renamed Vectrus Federal Services International, Ltd. effective
September 27, 2014.
13 Exelis Federal Services GmbH was renamed Vectrus Federal Services GmbH effective November 4, 2014.
14 Exelis Services GmbH was renamed Vectrus Facility Services GmbH effective November 4, 2014.
15 Exelis Missions Systems Ltd. was renamed Vectrus Mission Systems Ltd. effective November 4, 2014.
IF "
16 Exelis Services AS was renamed Vectrus Services AS effective November 30, 2016.
IF "
Schedule 6.01(b)
Existing Indebtedness
Capital Leases
Lessor Lessee Details Ending Balance End Date
Volkswagen
Leasing GmbH
Vectrus Services
GmbH
Vehicles €104,013.31 December 2019
Autohaus ▇▇▇▇▇▇▇
GmbH & Co. KG
Vectrus Federal
Services GmbH
Vehicles €6,5767.74 July 2019
Letters of Credit
Bank
Security # Issuer Applicant Beneficiary
Guarantee
Beneficiary Face Amount
5878601220 Citibank UAE
Vectrus Systems
Corporation
Ministry of
Economy (Dubai)
Ministry of
Economy (Dubai) AED 50,000
IF "
Schedule 6.02
Existing Liens
Liens on the leased equipment under the capital leases described in Schedule 6.01(b).
IF "
Schedule 6.04
Existing Investments
Investment constituting 40% of the equity interests in High Desert Support Services LLC.
IF "
Schedule 6.10
Existing Restrictions
None.
EXHIBIT A
[[3681538]]
[FORM OF] ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is
dated as of the Effective Date set forth below and is entered into by and between the
Assignor (as defined below) and the Assignee (as defined below). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex I
attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes
from the Assignor, subject to and in accordance with the Standard Terms and Conditions
referred to below and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, (a) all the Assignor’s rights and obligations
in its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of the Assignor
under the respective facilities identified below (including any Guarantees, Letters of
Credit and Swingline Loans included in such facilities) and (b) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any other right of
the Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (a) above (the
rights and obligations sold and assigned pursuant to clauses (a) and (b) above being
referred to herein collectively as the “Assigned Interest”). Such sale and assignment is
without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: _______________________________________________________
2. Assignee: ________________________________________________________
[and is [a Lender] [an Affiliate/Approved Fund of [Identify Lender]]]1
3. Borrower: Vectrus Systems Corporation, a Delaware corporation
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the Administrative
Agent under the Credit Agreement
1 Select as applicable.
[[3681538]]
5. Credit Agreement: The Credit Agreement dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (as further amended, restated,
supplemented or otherwise modified from time to time), among Vectrus, Inc.,
an Indiana corporation, Vectrus Systems Corporation, a Delaware corporation,
the Lenders and Issuing Banks party thereto and JPMorgan Chase Bank, N.A.,
as Administrative Agent.
6. Assigned Interest: 2
Facility Assigned
Aggregate Amount
of
Commitments/Loans
of the applicable
Class of all Lenders
Amount of the
Commitments/Loans
of the applicable
Class Assigned
Percentage Assigned
of Aggregate
Amount of
Commitments/Loans
of the applicable
Class of all Lenders3
Revolving
Commitments/Loans
$ $ %
Tranche A Term
Commitments/Loans
$ $ %
[ ]4 $ $ %
Effective Date: , 20___ [TO BE INSERTED BY THE ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR]
The Assignee, if not already a Lender, agrees to deliver to the Administrative Agent a
completed Administrative Questionnaire in which the Assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain MNPI) 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.
2 Must comply with the minimum assignment amounts set forth in Section 9.04(b)(ii)(A) of the Credit
Agreement, to the extent such minimum assignment amounts are applicable.
3 Set forth, to at least 9 decimals, as a percentage of the Commitments/Loans of all Lenders of any
Class, as applicable.
4 In the event Incremental Term Loans of any Class are established under Section 2.21 of the Credit
Agreement or any new Class of Loans or Commitments is established pursuant to Section 2.22 or 2.23 of
the Credit Agreement, refer to the Class of such Loans assigned.
[[3681538]]
The terms set forth above are hereby
agreed to:
________________, as Assignor,
by
_____________________________
Name:
Title:
________________, as Assignee,5
by
_____________________________
Name:
Title:
[Consented to and]6 Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent,
by
_____________________________
Name:
Title:
Consented to:
[VECTRUS SYSTEMS CORPORATION,
by
_____________________________
Name:
Title:]7
5 The Assignee must deliver to the Borrower all applicable Tax forms required to be delivered by it
under Section 2.17(f) of the Credit Agreement.
6 No consent of the Administrative Agent is required for an assignment of any Term Commitment or
Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
7 No consent of the Borrower is required (x) with respect to Term Commitments or Term Loans, for
an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, (y) with respect to Revolving
Commitments or Revolving Loans, for an assignment to a Revolving Lender, an Affiliate of a Revolving
Lender or an Approved Fund in respect of a Revolving Lender or (z) if an Event of Default has occurred
and is continuing, for any other assignment.
[[3681538]]
ANNEX 1 TO
ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and
clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes
no responsibility with respect to (i) any statements, warranties or representations made in
or in connection with the Credit Agreement or any other Loan Document, other than
statements made by it herein, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of Holdings, the Borrower, any Subsidiary or any other
Affiliate of Holdings or any other Person obligated in respect of any Loan Document or
(iv) the performance or observance by Holdings, the Borrower, any Subsidiary or any
other Affiliate of Holdings or any other Person of any of their respective obligations
under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption, to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in order to acquire
the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it
has received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.01 thereof (or, prior to the first such
delivery, the financial statements referred to in Section 3.04 thereof), and such other
documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent, the Assignor or any other Lender, (v) if it
is a Lender that is a U.S. Person, attached hereto is an executed original of IRS Form W-9
certifying that such Lender is exempt from U.S. Federal backup withholding tax and (vi)
if it is a Foreign Lender, attached hereto is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement (including Section 2.17(f) thereof), duly
completed and executed by the Assignee, and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the time,
[[3681538]]
continue to make its own credit decisions in taking or not taking action under the Loan
Documents and (ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such amounts have
accrued prior to or on or after the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment directly
between themselves.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts (and by different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by facsimile or other electronic imaging shall be effective as
delivery of a manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by and construed in accordance with the
laws of the State of New York.
EXHIBIT D
[[3681538]]
[FORM OF] SUPPLEMENTAL PERFECTION CERTIFICATE
Reference is made to the Credit Agreement dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (as amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Vectrus, Inc., an Indiana
corporation (“Holdings”), Vectrus Systems Corporation, a Delaware corporation (the
“Borrower”), the Lenders and Issuing Banks from time to time party thereto and
JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the
“Administrative Agent”). Capitalized terms used but not defined herein have the
meanings assigned in the Credit Agreement or the Collateral Agreement referred to
therein, as applicable.
This Certificate is dated as of [ ], 20[ ] and is delivered pursuant to Section
5.03(b) of the Credit Agreement (this Certificate and each other Certificate heretofore
delivered pursuant to Section 5.03(b) of the Credit Agreement being referred to as a
“Supplemental Perfection Certificate”), and supplements the information set forth in the
Supplemental Perfection Certificate delivered on [●] (as supplemented from time to time
by the Supplemental Perfection Certificates delivered after the Restatement Effective
Date and prior to the date hereof, the “Prior Perfection Certificate”).
The undersigned, a Financial Officer or legal officer of each of Holdings and the
Borrower, hereby certifies (solely in his/her capacity as an officer of Holdings and the
Borrower and not in his/her individual capacity) to the Administrative Agent and each
other Secured Party as follows:
1. Names. (a) Except as set forth in Schedule 1(a) hereto8, Schedule 1(a) of the Prior
Perfection Certificate sets forth the exact legal name of each Grantor, as such name
appears in its respective certificate of formation or organization.
(b) Except as set forth in Schedule 1(b) hereto, Schedule 1(b) of the Prior Perfection
Certificate sets forth (i) each other legal name each Grantor has had in the past five years,
together with the date of the relevant change and (ii) each other name (including trade
names or similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership of its
properties at any time during the past five years.
(c) Except as set forth in Schedule 1(c) hereto or as set forth on Schedule 1(c) of the
Prior Perfection Certificate, no Grantor has changed its identity or corporate structure in
any way within the past five years. Changes in identity or corporate structure would
include mergers, consolidations and acquisitions (including acquisitions of all or
substantially all of the assets of another person), as well as any change in the form, nature
or jurisdiction of organization. If any such change has occurred, include in Schedule 1(c)
8 Note to Holdings and Borrower: Please provide copies of organizational
documents for all Grantors and for all issuers of pledged Equity Interests. Please also
provide a structure chart showing the ownership relationship of the Grantors.
[[3681538]]
hereto (to the extent not already included in Schedule 1(c) of the Prior Perfection
Certificate) the information required by Sections 1 and 2 of this certificate as to each
acquiree or constituent party to a merger or consolidation.
(d) Except as set forth in Schedule 1(d) hereto, Schedule 1(d) of the Prior Perfection
Certificate sets forth (i) the Organizational Identification Number, if any, issued by the
jurisdiction of formation of each Grantor that is a registered organization and (ii) the
Federal Taxpayer Identification Number of each Grantor, in each case where such
information is required to be included in financing statements by the Uniform
Commercial Code filing office in the jurisdiction in which such Grantor is located.
2. Current Locations. (a) Except as set forth in Schedule 2(a) hereto, the jurisdiction of
formation or organization of each Grantor that is a registered organization is set forth in
Schedule 2(a) of the Prior Perfection Certificate opposite its name.
(b) Except as set forth in Schedule 2(b) hereto, the chief executive office of each Grantor
is located at the address set forth in Schedule 2(b) of the Prior Perfection Certificate
opposite its name.
(c) Except as set forth in Schedule 2(c) hereto, set forth in Schedule 2(c) of the Prior
Perfection Certificate opposite the name of each Grantor are all locations in the United
States where such Grantor maintains any books or records relating to any Accounts
Receivable with a value exceeding $1,000,000 (with each location at which chattel paper,
if any, is kept being indicated by an “*”).
(d) Except as set forth in Schedule 2(d) hereto, set forth in Schedule 2(d) of the Prior
Perfection Certificate opposite the name of each Grantor are all locations in the United
States where such Grantor maintains any Inventory with a value exceeding $1,000,000.
(e) Except as set forth in Schedule 2(e) hereto, set forth in Schedule 2(e) of the Prior
Perfection Certificate opposite the name of each Grantor are all locations in the United
States where such Grantor maintains any Equipment or other Collateral with a value
exceeding $1,000,000 not otherwise identified in Schedules 2(b), (c) or (d) of this
Supplemental Perfection Certificate or the Prior Perfection Certificate.
(f) Except as set forth in Schedule 2(f) hereto, Schedule 2(f) of the Prior Perfection
Certificate sets forth a list of all real property owned by each Grantor with a fair market
value in excess of $5,000,000, the name of the Grantor that owns such real property and
the fair market value of such real property, to the extent an appraisal exists with respect
to such real property or, in the absence of any such appraisal, the book value of such real
property.
3. Unusual Transactions. All Accounts have been originated by the Grantors and all
Inventory has been either acquired by the Grantors in the ordinary course of business or
manufactured by the Grantors.
[[3681538]]
4. File Search Reports. To the extent that this Supplemental Perfection Certificate
contains an update to Schedule 2(a) or Schedule 2(b) hereto, file search reports have been
obtained from each Uniform Commercial Code filing office identified with respect to
such Grantor in Section 2 of this Supplemental Perfection Certificate, and such search
reports reflect no liens against any of the Collateral other than those permitted under the
Credit Agreement.
5. UCC Filings. To the extent that this Supplemental Perfection Certificate contains an
update to Schedule 2(a) or Schedule 2(b) hereto, financing statements in substantially the
form of Schedule 5 hereto have been prepared by counsel to the Lenders for filing in the
proper Uniform Commercial Code filing office in the jurisdiction in which each Grantor
is located as set forth with respect to such Grantor in Section 2 hereof and, to the extent
any of the collateral is comprised of fixtures, timber to be cut or as extracted collateral
from the wellhead or minehead, in the proper local jurisdiction, in each case as set forth
with respect to such Grantor in Section 2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule setting forth, with
respect to the filings described in Section 5 above, each filing and the filing office in
which such filing is to be made.
7. Stock Ownership and other Equity Interests. Except as set forth in Schedule 7 hereto,
Schedule 7 of the Prior Perfection Certificate sets forth a true and correct list of (a) all the
issued and outstanding stock, partnership interests, limited liability company membership
interests or other Equity Interests held directly by each Grantor and the record and
beneficial owners of such stock, partnership interests, membership interests or other
Equity Interests and (b) each equity investment held directly by each Grantor that
represents 50% or more of the Equity Interests of the Person in which such investment
was made, in each case specifying the issuer and certificate number of, and the number
and percentage of ownership represented by, such Equity Interests and if such Equity
Interests are not required to be pledged under any of the Loan Documents, the reason
therefor.
8. Debt Instruments. Except as set forth in Schedule 8 hereto, Schedule 8 of the Prior
Perfection Certificate sets forth a true and correct list of all promissory notes and other
evidence of Indebtedness (other than checks to be deposited in the ordinary course of
business) held by each Grantor that are required to be pledged under the Collateral
Agreement.
9. [Reserved.]
10. Mortgage Filings. Except as set forth in Schedule 10 hereto, Schedule 10 of the Prior
Perfection Certificate sets forth, with respect to each Mortgaged Property, (a) the exact
name of the Person that owns such property as such name appears in its certificate of
incorporation or other organizational document, (b) if different from the name identified
pursuant to clause (a), the exact name of the current record owner of such property
reflected in the records of the filing office for such property identified pursuant to the
following clause and (c) the filing office in which a Mortgage with respect to such
[[3681538]]
property must be filed or recorded in order for the Administrative Agent to obtain a
perfected security interest therein.
11. Intellectual Property. Except as set forth in Schedule 11(A) hereto, Schedule 11(A)
of the Prior Perfection Certificate sets forth, in proper form for filing with the United
States Patent and Trademark Office, a list of each Grantor’s U.S. Patents and Patent
Applications, including the name of the registered owner, type, registration or application
number and the expiration date (if already registered) of each U.S. Patent and Patent
Applications owned by any Grantor.
Except as set forth in Schedule 11(B) hereto, Schedule 11(B) of the Prior Perfection
Certificate sets forth, in proper form for filing with the United States Patent and
Trademark Office, a list of each Grantor’s U.S. registered Trademarks and Trademark
Applications, including the name of the registered owner, the registration or application
number and the expiration date (if already registered) of each of same owned by any
Grantor.
Except as set forth in Schedule 11(C) hereto, Schedule 11(C) of the Prior Perfection
Certificate sets forth, in proper form for filing with the United States Copyright Office, a
list of each Grantor’s U.S. registered Copyrights (including the name of the registered
owner, the title and the registration number) and Copyright Applications (including the
name of the registered owner and the title) of each Copyright or Copyright Application
owned by any Grantor. Also set forth on Schedule 11(C) in proper form for filing with
the United States Copyright Office is a schedule setting forth all exclusive Copyright
Licenses granted to any Grantor for which the licensed work is registered in the United
States Copyright Office.
12. Commercial Tort Claims. Except as set forth in Schedule 12 hereto, Schedule 12 of
the Prior Perfection Certificate sets forth a true and correct list of commercial tort claims
in excess of $1,000,000 held by any Grantor, including a brief description thereof.
13. Deposit Accounts. Except as set forth in Schedule 13 hereto, Schedule 13 of the
Prior Perfection Certificate sets forth a true and correct list of deposit accounts
maintained by each Grantor in the United States, other than all Excluded Accounts,
including the name and address of the depositary institution, the type of account and the
account number.
14. Securities Accounts and Commodities Accounts. Except as set forth in Schedule 14
hereto, Schedule 14 of the Prior Perfection Certificate sets forth a true and correct list of
securities accounts and commodities accounts maintained by each Grantor in the United
States, other than all Excluded Accounts, including the name and address of the
intermediary institution, the type of account and the account number.
15. Assignment of Claims Act. Except as set forth in Schedule 15 hereto, Schedule 15 of
the Prior Perfection Certificate sets forth a true and correct list of all Material
Government Contracts, setting forth the contract number, name and address of
contracting officer (or other party to whom a notice of assignment under the Assignment
[[3681538]]
of Claims Act should be sent), contract start date, agency with which the contract was
entered into, and a description of the contract type.
16. Chattel Paper. Except as set forth in Schedule 16 hereto, Schedule 16 of the Prior
Perfection Certificate sets forth a true and complete list, for each Grantor, of all chattel
paper (whether tangible or electronic) in excess of $1,000,000, specifying the Grantor
and obligor thereunder, the type, the due date and outstanding principal amount thereof.
[Signature Page Follows]
[[3681538]]
IN WITNESS WHEREOF, the undersigned have duly executed this
certificate on the date first written above.
VECTRUS, INC.
By: ____________________________
Name:
Title:
VECTRUS SYSTEMS CORPORATION
By: ____________________________
Name:
Title:
EXHIBIT F
[[3681538]]
AUCTION PROCEDURES
This Exhibit F is intended to summarize certain basic terms of the reverse Dutch auction
procedures pursuant to and in accordance with the terms and conditions of Section
9.04(e) of the Credit Agreement, of which this Exhibit F is a part. It is not intended to be
a definitive statement of all of the terms and conditions of a reverse Dutch auction, the
definitive terms and conditions for which shall be set forth in the applicable Auction
Notice. None of the Administrative Agent, the Auction Manager, any of their respective
Affiliates, any Purchasing Borrower Party or any of its Affiliates makes any
recommendation pursuant to the applicable Auction Notice as to whether or not any
Lender should sell its Term Loans to a Purchasing Borrower Party pursuant to the
applicable Auction Notice, nor shall the decision by the Administrative Agent or the
Auction Manager (or any of their respective Affiliates) in its capacity as a Lender to sell
its Term Loans to a Purchasing Borrower Party be deemed to constitute such a
recommendation. Each Lender should make its own decision as to whether to sell any of
its Term Loans and as to the price to be sought for such Term Loans. In addition, each
Lender should consult its own attorney, business advisor or tax advisor as to legal,
business, tax and related matters concerning each Auction Purchase Offer and the
applicable Auction Notice. Capitalized terms not otherwise defined in this Exhibit F have
the meanings assigned to them in the Credit Agreement.
Notice Procedures. In connection with each Auction Purchase Offer, a Purchasing
Borrower Party will provide notification to the Auction Manager (for distribution to the
Lenders) of the Term Loans (as determined by such Purchasing Borrower Party in its sole
discretion) that will be the subject of such Auction Purchase Offer (each, an “Auction
Notice”). Each Auction Notice shall contain (i) the maximum principal amount
(calculated on the face amount thereof) of Term Loans of the applicable Class that the
applicable Purchasing Borrower Party offers to purchase in such Auction Purchase Offer
(the “Auction Amount”), which shall be no less than $20,000,000; (ii) the range of
discounts to par (the “Discount Range”), expressed as a range of prices (in increments of
$25) per $1,000, at which such Purchasing Borrower Party would be willing to purchase
Term Loans of such Class in such Auction Purchase Offer; and (iii) the date on which
such Auction Purchase Offer will conclude (which date shall not be less than three
Business Days following the distribution of the Auction Notice to the Lenders), on which
date Return Bids (as defined below) will be due by 1:00 p.m., New York City time (as
such date and time may be extended by the Auction Manager, the “Expiration Time”).
Such Expiration Time may be extended for a period not exceeding three Business Days
upon notice by the applicable Purchasing Borrower Party to the Auction Manager
received not less than 24 hours before the original Expiration Time; provided that only
one extension per Auction Purchase Offer shall be permitted. An Auction Purchase Offer
shall be regarded as a “failed Auction Purchase Offer” in the event that either (x) the
applicable Purchasing Borrower Party withdraws such Auction Purchase Offer in
accordance with the terms hereof or (y) the Expiration Time occurs with no Qualifying
Bids (as defined below) having been received. In the event of a failed Auction Purchase
Offer, no Purchasing Borrower Party shall be permitted to deliver a new Auction Notice
prior to the date occurring three Business Days after such withdrawal or Expiration Time,
as the case may be. Notwithstanding anything to the contrary contained herein, the
[[3681538]]
applicable Purchasing Borrower Party shall not initiate any Auction Purchase Offer by
delivering an Auction Notice to the Auction Manager until after the conclusion (whether
successful or failed) of the previous Auction Purchase Offer (if any), whether such
conclusion occurs by withdrawal of such previous Auction Purchase Offer or the
occurrence of the Expiration Time of such previous Auction Purchase Offer.
Reply Procedures. In connection with any Auction Purchase Offer, each Lender of Term
Loans of the applicable Class wishing to participate in such Auction Purchase Offer shall,
prior to the Expiration Time, provide the Auction Manager with a notice of participation,
in the form included in the applicable offering document (each, a “Return Bid”), which
shall specify (i) a discount to par that must be expressed as a price (in increments of $25)
per $1,000 in principal amount of Term Loans of the applicable Class (the “Reply Price”)
within the Discount Range and (ii) the principal amount of Term Loans of the applicable
Class, in an amount not less than $1,000,000 or an integral multiple of $1,000 in excess
thereof, that such Lender offers for sale at its Reply Price (the “Reply Amount”). A
Lender may submit a Reply Amount that is less than the minimum amount and
incremental amount requirements described above only if the Reply Amount comprises
the entire amount of the Term Loans of the applicable Class held by such Lender.
Lenders may only submit one Return Bid per Auction Purchase Offer, but each Return
Bid may contain up to three component bids, each of which may result in a separate
Qualifying Bid (as defined below) and each of which will not be contingent on any other
component bid submitted by such Lender resulting in a Qualifying Bid. In addition to the
Return Bid, the participating Lender must execute and deliver, to be held in escrow by
the Auction Manager, an Affiliated Lender Assignment and Assumption. No Purchasing
Borrower Party will purchase any Term Loans at a price that is outside of the applicable
Discount Range, nor will any Return Bids (including any component bids specified
therein) submitted at a price that is outside such applicable Discount Range be considered
in any calculation of the Applicable Threshold Price (as defined below).
Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the
Auction Manager, the Auction Manager, in consultation with the applicable Purchasing
Borrower Party, will determine the applicable discounted price (the “Applicable
Discounted Price”) for the Auction, which will be (i) the lowest Reply Price for which
such Purchasing Borrower Party can complete the Auction Purchase Offer at the Auction
Amount or (ii) in the event that the aggregate amount of the Reply Amounts relating to
such Auction Notice is insufficient to allow such Purchasing Borrower Party to purchase
the entire Auction Amount, the highest Reply Price that is within the Discounted Range
so that such Purchasing Borrower Party can complete the purchase at such aggregate
amount of Reply Amounts. Subject to the conditions contained in the Auction Notice,
the applicable Purchasing Borrower Party shall purchase the Term Loans of the
applicable Class (or the respective portions thereof) from each Lender with a Reply Price
that is equal to or less than the Applicable Discounted Price (“Qualifying Bids”) at the
Applicable Discounted Price; provided that if the aggregate amount required to pay the
Qualifying Bids would exceed the Auction Amount for such Auction Purchase Offer,
such Purchasing Borrower Party shall pay such Qualifying Bids at the Applicable
Discounted Price ratably based on the respective principal amounts of such Qualifying
Bids (subject to rounding requirements specified by the Auction Manager) in an
aggregate amount not to exceed the Auction Amount. Each participating Lender shall be
[[3681538]]
given notice as to whether its bid is a Qualifying Bid as soon as reasonably practicable
but in no case later than five Business Days from the date the Return Bid was due.
Notification Procedures. The Auction Manager will calculate the Applicable Discounted
Price and will cause the Administrative Agent to post the Applicable Discounted Price
and proration factor onto an internet or intranet site (including an IntraLinks, SyndTrak or
other electronic workspace) in accordance with the Auction Manager’s standard
dissemination practices by 4:00 p.m., New York City time, on the Business Day during
which the Expiration Time occurs. The Auction Manager will insert the principal amount
of Term Loans of the applicable Class to be assigned and the applicable settlement date
into each applicable Affiliated Lender Assignment and Assumption received in
connection with a Qualifying Bid. Upon the request of the submitting Lender, the
Auction Manager will promptly return any Affiliated Lender Assignment and
Assumption received in connection with a Return Bid that is not a Qualifying Bid.
Additional Procedures. Once initiated by an Auction Notice, the applicable Purchasing
Borrower Party may withdraw an Auction Purchase Offer only if no Qualifying Bid has
been received by the Auction Manager at the time of withdrawal. Any Return Bid
(including any component bid thereof) delivered to the Auction Manager may not be
withdrawn, modified, revoked, terminated or cancelled by a Lender. However, an
Auction Purchase Offer may become void if the conditions to the purchase set forth in
Section 9.04(e) of the Credit Agreement are not met. The purchase price in respect of
each Qualifying Bid for which purchase by the applicable Purchasing Borrower Party is
required in accordance with the foregoing provisions shall be paid directly by such
Purchasing Borrower Party to the respective assigning Lender on a settlement date as
determined jointly by such Purchasing Borrower Party and the Auction Manager (which
shall be not later than ten Business Days after the date Return Bids are due). The
applicable Purchasing Borrower Party shall execute each applicable Affiliated Lender
Assignment and Assumption received in connection with a Qualifying Bid. All questions
as to the form of documents and eligibility of Term Loans that are the subject of an
Auction Purchase Offer will be determined by the Auction Manager, in consultation with
the applicable Purchasing Borrower Party, and their determination will be final and
binding so long as such determination is not inconsistent with the terms of Section
9.04(e) of the Credit Agreement or this Exhibit F. The Auction Manager’s interpretation
of the terms and conditions of the Auction Notice, in consultation with the applicable
Purchasing Borrower Party, will be final and binding so long as such interpretation is not
inconsistent with the terms of Section 9.04(e) of the Credit Agreement or this Exhibit F.
None of the Administrative Agent, the Auction Manager or any of their respective
Affiliates assumes any responsibility for the accuracy or completeness of the information
concerning the applicable Purchasing Borrower Party, the Loan Parties or any of their
respective Affiliates (whether contained in an offering document or otherwise) or for any
failure to disclose events that may have occurred and may affect the significance or
accuracy of such information. Notwithstanding anything to the contrary contained herein
or in any other Loan Document, this Exhibit F shall not require any Purchasing Borrower
Party to initiate any Auction Purchase Offer.
EXHIBIT G
[[3681538]]
[FORM OF] AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION
This Affiliated Lender Assignment and Assumption (this “Assignment and
Assumption”) is dated as of the Effective Date set forth below and is entered into by and
between the Assignor (as defined below) and the Assignee (as defined below).
Capitalized terms used but not defined herein shall have the meanings given to them in
the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of
which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set
forth in Annex I attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in
full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes
from the Assignor, subject to and in accordance with the Standard Terms and Conditions
referred to below and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, (a) all the Assignor’s rights and obligations
in its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of the Assignor
under the respective facilities identified below (including any Guarantees included in
such facilities) and (b) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any
of the foregoing, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and obligations sold
and assigned pursuant to clause (a) above (the rights and obligations sold and assigned
pursuant to clauses (a) and (b) above being referred to herein collectively as the
“Assigned Interest”). Such sale and assignment is without recourse to the Assignor and,
except as expressly provided in this Assignment and Assumption, without representation
or warranty by the Assignor.
1. Assignor: _______________________________________________________
2. Assignee: ________________________________________________________
[and is [a Lender] [an Affiliate/Approved Fund of [Identify Lender]]]1
3. Borrower: Vectrus Systems Corporation, a Delaware corporation
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the Administrative
Agent under the Credit Agreement
1 Select as applicable.
[[3681538]]
5. Credit Agreement: The Credit Agreement dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (as further amended, restated,
supplemented or otherwise modified from time to time), among Vectrus, Inc.,
an Indiana corporation, Vectrus Systems Corporation, a Delaware corporation,
the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative
Agent.
6. Assigned Interest: 2
Facility Assigned
Aggregate Amount
of
Commitments/Loans
of the applicable
Class of all Lenders
Amount of the
Commitments/Loans
of the applicable
Class Assigned
Percentage Assigned
of Aggregate
Amount of
Commitments/Loans
of the applicable
Class of all Lenders3
Tranche A Term Loans $ $ %
[ ]4 $ $ %
Effective Date: , 20___ [TO BE INSERTED BY THE ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR]
The Assignee, if not already a Lender, agrees to deliver to the Administrative Agent a
completed Administrative Questionnaire in which the Assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain MNPI) 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.
2 Must comply with the minimum assignment amounts set forth in Section 9.04(b)(ii)(A) of the Credit
Agreement, to the extent such minimum assignment amounts are applicable.
3 Set forth, to at least 9 decimals, as a percentage of the Commitments/Loans of all Lenders of any
Class, as applicable.
4 In the event Incremental Term Loans of any Class are established under Section 2.21 of the Credit
Agreement or any new Class of Loans or Commitments is established pursuant to Section 2.23 of the
Credit Agreement, refer to the Class of such Loans assigned.
[[3681538]]
The terms set forth above are hereby
agreed to:
________________, as Assignor,
by
_____________________________
Name:
Title:
________________, as Assignee,5
by
_____________________________
Name:
Title:
[Consented to and]6 Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent,
by
_____________________________
Name:
Title:
Consented to:
[VECTRUS SYSTEMS CORPORATION,
by
_____________________________
Name:
Title:]7
5 The Assignee must deliver to the Borrower all applicable Tax forms required to be delivered by it
under Section 2.17(f) of the Credit Agreement.
6 No consent of the Administrative Agent is required for an assignment of any Term Commitment or
Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
7 No consent of the Borrower is required (x) with respect to Term Commitments or Term Loans, for
an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, (y) with respect to Revolving
Commitments or Revolving Loans, for an assignment to a Revolving Lender, an Affiliate of a Revolving
Lender or an Approved Fund in respect of a Revolving Lender or (z) if an Event of Default has occurred
and is continuing, for any other assignment.
[[3681538]]
ANNEX 1 TO
AFFILIATED LENDER
ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and
clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or
in connection with the Credit Agreement or any other Loan Document, other than
statements made by it herein, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of Holdings, the Borrower, any Subsidiary or any other
Affiliate of Holdings or any other Person obligated in respect of any Loan Document or
(iv) the performance or observance by Holdings, the Borrower, any Subsidiary or any
other Affiliate of Holdings or any other Person of any of their respective obligations
under any Loan Document and (c) acknowledges that the Assignee is a Purchasing
Borrower Party.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption, to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in order to acquire
the Assigned Interest and become a Lender, (iii) it is a Purchasing Borrower Party (as
defined in the Credit Agreement), (iv) as of the date hereof the Assignee either (A) does
not have any MNPI (as defined in the Credit Agreement) that has not been disclosed to
the Assignor (other than because the Assignor does not wish to receive MNPI) on or prior
to the date of the initiation of the Auction in connection with which this assignment is
being effectuated or (B) has advised the Assignor that the Assignee cannot make the
statement in the foregoing clause (A) (except to the extent that the Assignor has
separately entered into a customary “big boy” letter with Holdings or the Borrower;
provided that no Lender shall be required to enter into any such “big boy” letter), (iii)
from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered
pursuant to Section 5.01 thereof (or, prior to the first such delivery, the financial
statements referred to in Section 3.04 thereof), and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into
[[3681538]]
this Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, (v) if it is a Lender that is a U.S.
Person, attached hereto is an executed original of IRS Form W-9 certifying that such
Lender is exempt from U.S. Federal backup withholding tax and (vi) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement (including Section 2.17(f) thereof), duly completed
and executed by the Assignee, and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan Documents
and (ii) it will perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such amounts have
accrued prior to or on or after the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment directly
between themselves.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts (and by different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by facsimile or other electronic imaging shall be effective as
delivery of a manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by and construed in accordance with the
laws of the State of New York.
EXHIBIT H
[[3681538]]
[FORM OF] MATURITY DATE EXTENSION REQUEST
[Insert Date]
JPMorgan Chase Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [●]
Fax: [●]
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of September 17,
2014, as amended and restated as of November 15, 2017 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Vectrus, Inc., an Indiana corporation, Vectrus Systems Corporation, a Delaware
corporation (the “Borrower”), the Lenders and Issuing Banks party thereto and JPMorgan
Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to them in the Credit Agreement.
In accordance with Section 2.22 of the Credit Agreement, the undersigned
hereby requests [(a)] an extension of the [insert applicable Class] Maturity Date from [●]
to [●][, (b) the Applicable Rate to be applied in determining the interest payable on
[insert applicable Class] Loans of[, and fees payable under the Credit Agreement to,]
Consenting Lenders in respect of that portion of their [[insert applicable Class] Loans]
extended to the new Maturity Date to be [●]%, which changes shall be effective as of [●]
and (c) the amendments to the terms of the Credit Agreement set forth below, which
amendments will become effective on [●]:]
[Insert amendments to Credit Agreement, if any]
[Signature Pages Follow]
[[3681538]]
Very truly yours,
VECTRUS SYSTEMS CORPORATION
By:___________________________
Name:
Title:
EXHIBIT I-1
[[3681538]]
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Vectrus, Inc., an Indiana corporation,
Vectrus Systems Corporation, a Delaware corporation (the “Borrower”), the Lenders and Issuing Banks
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory
note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10-percent shareholder” of the
Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign
corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a
certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable.
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2)
the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each payment is
to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT I-2
[[3681538]]
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Vectrus, Inc., an Indiana corporation,
Vectrus Systems Corporation, a Delaware corporation (the “Borrower”), the Lenders and Issuing Banks
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing
this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such
participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or
indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none
of its direct or indirect partners/members is a “10-percent shareholder” of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a
“controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY
accompanied by one of the following forms from each of its partners/members that is claiming the
portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (ii) an
IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption.
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all
times furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT I-3
[[3681538]]
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Vectrus, Inc., an Indiana corporation,
Vectrus Systems Corporation, a Delaware corporation (the “Borrower”), the Lenders and Issuing Banks
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it
is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code,
(iii) it is not a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of
the Code, and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in
Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all
times furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT I-4
[[3681538]]
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of September 17, 2014, as
amended and restated as of November 15, 2017 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Vectrus, Inc., an Indiana corporation,
Vectrus Systems Corporation, a Delaware corporation (the “Borrower”), the Lenders and Issuing Banks
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect
partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s)
evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or
any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a
“bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or
business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect
partners/members is a “10-percent shareholder” of the Borrower within the meaning of Section
871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign
corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS
Form W-8IMY accompanied by one of the following forms from each of its partners/members that is
claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as
applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-
E, as applicable, from each of such partner's/member's beneficial owners that is claiming the portfolio
interest exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the
Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the calendar
year in which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:
Name:
Title:
Date: ________ __, 20[ ]