4826-5029-7676\4 EXECUTION VERSION Published CUSIP Numbers: 25764JAE1 (Transaction) 25764JAF8 (Revolver) 25764JAG6 (Term Loan) CREDIT AGREEMENT Dated as of July 21, 2017 among DONALDSON COMPANY, INC., VARIOUS SUBSIDIARIES THEREOF, WELLS FARGO BANK,...
4826-5029-7676\4
EXECUTION VERSION
Published CUSIP Numbers:
▇▇▇▇▇▇▇▇▇ (Transaction)
▇▇▇▇▇▇▇▇▇ (Revolver)
▇▇▇▇▇▇▇▇▇ (Term Loan)
CREDIT AGREEMENT
Dated as of July 21, 2017
among
▇▇▇▇▇▇▇▇▇ COMPANY, INC.,
VARIOUS SUBSIDIARIES THEREOF,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent
and
L/C Issuer,
U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agent,
and
THE OTHER LENDERS PARTY HERETO
▇▇▇▇▇ FARGO SECURITIES, LLC
and
U.S. BANK NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Book Managers
AmericasActive:9220023.9
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ................................................... 1
1.01 Defined Terms ............................................................................................... 1
1.02 Other Interpretive Provisions ....................................................................... 27
1.03 Accounting Terms........................................................................................ 28
1.04 Rounding ...................................................................................................... 28
1.05 References to Agreements and Laws ........................................................... 28
1.06 Times of Day ............................................................................................... 29
1.07 Letter of Credit Amounts ............................................................................. 29
1.08 Exchange Rates; Currency Equivalents ....................................................... 29
1.09 Additional Offshore Currencies ................................................................... 29
1.10 Change of Currency ..................................................................................... 30
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS ................................. 31
2.01 Loans ............................................................................................................ 31
2.02 Procedures for Borrowing ............................................................................ 31
2.03 Conversion and Continuation Elections for Borrowings ............................. 33
2.04 Utilization of Commitments in Offshore Currencies ................................... 34
2.05 Letters of Credit ........................................................................................... 34
2.06 Prepayments ................................................................................................. 43
2.07 Termination or Reduction of Commitments ................................................ 44
2.08 Repayment of Loans .................................................................................... 44
2.09 Interest ......................................................................................................... 45
2.10 Fees .............................................................................................................. 45
2.11 Computation of Interest and Fees and Dollar Equivalent Amounts;
Retroactive Adjustments of Applicable Rate............................................... 46
2.12 Evidence of Debt ......................................................................................... 46
2.13 Payments Generally; Administrative Agent’s Clawback ............................ 47
2.14 Sharing of Payments by Lenders ................................................................. 48
2.15 Borrowing Subsidiaries; Company as agent for Borrowing Subsidiaries ... 49
2.16 Incremental Loans and Commitments ......................................................... 50
2.17 Defaulting Lenders ...................................................................................... 52
2.18 Extension of Revolving Maturity Date ........................................................ 55
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY .................................. 56
3.01 Taxes ............................................................................................................ 56
3.02 Changed Circumstances ............................................................................... 60
3.03 Increased Costs ............................................................................................ 61
3.04 Funding Losses ............................................................................................ 63
3.05 Matters Applicable to all Requests for Compensation ................................ 63
3.06 Survival ........................................................................................................ 64
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ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ........................ 64
4.01 Conditions of Initial Credit Extension ......................................................... 64
4.02 Conditions to all Credit Extensions ............................................................. 65
4.03 Initial Credit Extension to Each Borrowing Subsidiary .............................. 66
ARTICLE V REPRESENTATIONS AND WARRANTIES .................................................. 67
5.01 Existence, Qualification and Power; Compliance with Laws ...................... 67
5.02 Authorization; No Contravention ................................................................ 67
5.03 Governmental Authorization; Other Consents ............................................ 67
5.04 Binding Effect .............................................................................................. 67
5.05 Financial Statements; No Material Adverse Effect ..................................... 67
5.06 Litigation ...................................................................................................... 68
5.07 Environmental Compliance ......................................................................... 68
5.08 Taxes ............................................................................................................ 69
5.09 ERISA Compliance...................................................................................... 69
5.10 Subsidiaries .................................................................................................. 69
5.11 Margin Regulations; Investment Company Act .......................................... 69
5.12 Disclosure .................................................................................................... 70
5.13 Compliance with Laws ................................................................................ 70
ARTICLE VI AFFIRMATIVE COVENANTS ....................................................................... 71
6.01 Financial Statements .................................................................................... 71
6.02 Certificates; Other Information .................................................................... 71
6.03 Notices ......................................................................................................... 73
6.04 Payment of Obligations ............................................................................... 74
6.05 Preservation of Existence, Etc ..................................................................... 74
6.06 Maintenance of Properties ........................................................................... 74
6.07 Maintenance of Insurance ............................................................................ 74
6.08 Compliance with Laws ................................................................................ 74
6.09 Books and Records ...................................................................................... 74
6.10 Inspection Rights ......................................................................................... 75
6.11 Use of Proceeds ........................................................................................... 75
6.12 Compliance with Environmental Laws........................................................ 75
ARTICLE VII NEGATIVE COVENANTS ............................................................................. 75
7.01 Liens............................................................................................................. 75
7.02 Fundamental Changes .................................................................................. 77
7.03 Investments .................................................................................................. 77
7.04 Accounting Changes .................................................................................... 78
7.05 Financial Covenants ..................................................................................... 78
7.06 Change in Nature of Business ...................................................................... 78
7.07 Transactions with Affiliates ......................................................................... 78
7.08 Use of Proceeds ........................................................................................... 79
7.09 Priority Debt ................................................................................................ 79
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ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES ................................................ 79
8.01 Events of Default ......................................................................................... 79
8.02 Remedies Upon Event of Default ................................................................ 81
8.03 Application of Funds ................................................................................... 82
ARTICLE IX AGENT ................................................................................................................ 83
9.01 Appointment and Authority ......................................................................... 83
9.02 Rights as a Lender........................................................................................ 83
9.03 Exculpatory Provisions ................................................................................ 83
9.04 Reliance by Administrative Agent ............................................................... 84
9.05 Delegation of Duties .................................................................................... 84
9.06 Resignation of Administrative Agent .......................................................... 85
9.07 Non-Reliance on Administrative Agent and Other Lenders ........................ 86
9.08 Administrative Agent May File Proofs of Claim......................................... 86
9.09 Cash Collateral and Guaranty Matters ......................................................... 87
9.10 Other Agents; Arrangers and Managers ...................................................... 87
ARTICLE X GUARANTEE ...................................................................................................... 87
10.01 Unconditional Guarantee ............................................................................. 87
10.02 Guarantee Absolute...................................................................................... 88
10.03 Waivers ........................................................................................................ 88
10.04 Subrogation .................................................................................................. 89
10.05 Survival ........................................................................................................ 89
ARTICLE XI MISCELLANEOUS ........................................................................................... 90
11.01 Amendments, Etc ......................................................................................... 90
11.02 Notices; Effectiveness; Electronic Communication .................................... 91
11.03 No Waiver; Cumulative Remedies .............................................................. 94
11.04 Attorney Costs, Expenses and Taxes ........................................................... 94
11.05 Indemnification by the Borrowers ............................................................... 94
11.06 Payments Set Aside ..................................................................................... 95
11.07 Successors and Assigns ............................................................................... 96
11.08 Treatment of Certain Information; Confidentiality ................................... 100
11.09 Set-off ........................................................................................................ 101
11.10 Interest Rate Limitation ............................................................................. 101
11.11 Counterparts; Effectiveness ....................................................................... 101
11.12 Integration .................................................................................................. 101
11.13 Survival of Representations and Warranties .............................................. 102
11.14 Severability ................................................................................................ 102
11.15 Replacement of Lenders ............................................................................ 102
11.16 Automatic Debits of Fees .......................................................................... 103
11.17 Governing Law .......................................................................................... 103
11.18 No Advisory or Fiduciary Responsibility .................................................. 105
11.19 USA PATRIOT Act Notice ....................................................................... 105
11.20 Judgment Currency .................................................................................... 105
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11.21 Acknowledgement and Consent to Bail-In of EEA Financial Institutions 106
11.22 Waiver of Prepayment Notice under Existing Credit Agreement ............. 106
11.23 Release of ▇▇▇▇▇▇▇▇▇ Capital as a Guarantor under Existing Credit
Agreement. ................................................................................................. 106
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SCHEDULES
2.01 Commitments and Pro Rata Shares
5.10 Subsidiaries
7.01 Existing Liens
7.03 Existing Investments
11.02 Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
Form of
A Borrowing Notice
B Notice of Conversion/Continuation
C-1 Revolving Credit Note
C-2 Term Loan Note
D Compliance Certificate
E Assignment and Assumption
F [Reserved]
G U.S. Tax Compliance Certificate
H-1 Borrowing Subsidiary Agreement
H-2 Borrowing Subsidiary Termination
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) dated as of July 21, 2017 is among
▇▇▇▇▇▇▇▇▇ COMPANY, INC., a Delaware corporation (the “Company”), the subsidiaries
listed on the signature pages hereof or which from time to time become parties hereto pursuant to
Section 2.15 (each a “Borrowing Subsidiary” and collectively the “Borrowing Subsidiaries”),
each lender from time to time party hereto (collectively, the “Lenders” and individually, each a
“Lender”) and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent
and L/C Issuer.
WHEREAS, the Company has requested, and, subject to the terms and conditions hereof,
the Administrative Agent, the Lenders and the L/C Issuer have agreed to extend, certain credit
accommodations to the Borrowers on the terms and conditions of this Agreement; and
WHEREAS, in order to induce the Administrative Agent, the Lenders and the L/C Issuer
to enter into or extend or continue to give financial accommodations under this Agreement, the
Company has agreed to guarantee the Obligations of any Borrowing Subsidiary pursuant to
Article X.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the
respective meanings set forth below:
“Acquisition” means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the
capital stock, partnership interests, membership interests or equity of any Person or otherwise
causing any Person to become a Subsidiary or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a Subsidiary); provided that the
Company or a Subsidiary is the surviving entity.
“Additional Commitment Lender” has the meaning specified in Section 2.18(d).
“Administrative Agent” means ▇▇▇▇▇ Fargo in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.
“Administrative Agent Fee Letter” means the letter agreement dated June 7, 2017 from
the Administrative Agent and ▇▇▇▇▇ Fargo Securities, LLC to (and acknowledged by) the
Company.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other address or account as the
Administrative Agent may from time to time notify the Company and the Lenders; provided that
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with respect to any payment in any Offshore Currency, the Administrative Agent’s Office means
such address as the Administrative Agent may from time to time specify in accordance with
Section 11.02.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” means, with respect to any 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. “Control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person possesses, directly or indirectly,
power to vote 10% or more of the securities having ordinary voting power for the election of
directors, managing general partners or the equivalent.
“Aggregate Revolving Credit Commitments” means $500,000,000, as such amount may
be reduced pursuant to Section 2.07 or increased pursuant to Section 2.16.
“Aggregate Term Loan Commitment Amount” means $50,000,000, as such amount may
be increased pursuant to Section 2.16.
“Agreed Alternative Currency” means any currency approved as an Offshore Currency
pursuant to Section 1.09.
“Agreement” has the meaning specified in the introductory paragraph hereof.
“Agreement Currency” has the meaning specified in Section 11.20.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction
applicable to the Company or its Subsidiaries from time to time concerning or relating to bribery
or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of
1977 and the rules and regulations thereunder and the U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the rules and
regulations thereunder.
“Anti-Money Laundering Laws” means any and all laws, statutes, regulations or
obligatory government orders, decrees, ordinances or rules applicable to a Loan Party, its
Subsidiaries or Affiliates related to terrorism financing or money laundering, including any
applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting
Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s),
1820(b) and 1951-1959).
“Applicable Currencies” means Dollars and Offshore Currencies.
“Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(a):
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Pricing
Level Leverage Ratio Facility Fee
LIBOR
Rate
Revolving
Credit
Loans &
Letters of
Credit
Base Rate
Revolving
Credit
Loans
LIBOR
Rate Term
Loans
Base Rate
Term
Loans
1 < 0.5x 0.08% 0.795% 0% 0.75% 0%
2 ≥ 0.5x, but < 1.0x 0.10% 0.90% 0% 0.875% 0%
3 ≥ 1.0x, but < 1.5x 0.125% 1.0% 0% 1.0% 0%
4 ≥ 1.5x, but < 2.0x 0.15% 1.10% 0.10% 1.125% 0.125%
5 ≥ 2.0x but < 2.5 0.20% 1.175% 0.175% 1.25% 0.25%
6 ≥ 2.5x 0.25% 1.375% 0.375% 1.50% 0.50%
As of the Effective Date, Pricing Level 3 shall apply. Thereafter, the applicable Pricing
Level shall be adjusted, to the extent applicable, 45 days (or, in the case of the last fiscal quarter
of any fiscal year, 90 days) after the end of each fiscal quarter based on the Leverage Ratio as of
the last day of such fiscal quarter; provided that if the Company fails to deliver the financial
statements required by Section 6.01(a) or (b), as applicable, and the related Compliance
Certificate required by Section 6.02(a) by the 45th day (or, if applicable, the 90th day) after any
fiscal quarter, Pricing Level 6 shall apply until such financial statements are delivered.
“Applicable Time” means, with respect to any Borrowings and payments in any Offshore
Currency, the local time in the place of settlement for such Offshore Currency as may be
determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary
for timely settlement on the relevant date in accordance with normal banking procedures in the
place of payment.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
“Arrangers” means ▇▇▇▇▇ Fargo Securities, LLC and U.S. Bank National Association,
each in its capacity as a joint lead arranger and a joint book manager.
“Assignment and Assumption” means an Assignment and Assumption substantially in
the form of Exhibit E.
“Attorney Costs” means and includes all reasonable and documented out-of-pocket fees,
expenses and disbursements of any law firm or other external counsel and, without duplication,
the allocated cost of internal legal services and all expenses and disbursements of internal
counsel.
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“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with
GAAP if such lease were accounted for as a capital lease.
“Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended July 31, 2016 and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year,
including the notes thereto.
“Availability Period” means the period from and including the Effective Date to the
earliest of (a) the Revolving Maturity Date, (b) the date of termination of the Aggregate
Revolving Credit Commitments pursuant to Section 2.07 and (c) the date of termination of the
commitment of each Lender to make Revolving Credit Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
“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.
“Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds
Rate plus 0.50% and (c) except during any period of time during which a notice delivered to the
Company under Section 3.02 shall remain in effect, LIBOR for an Interest Period of one month
plus 1%; each change in the Base Rate shall take effect simultaneously with the corresponding
change or changes in the Prime Rate, the Federal Funds Rate or LIBOR. Notwithstanding the
foregoing, if at any time the Base Rate (determined as provided above) shall be less than zero,
the Base Rate shall be deemed to be zero for all purposes of this Agreement.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Borrowers” means the Company and each Borrowing Subsidiary.
“Borrowing” means (a) a borrowing under Section 2.01(a) consisting of simultaneous
Revolving Credit Loans of the same Type and in the same Applicable Currency made to the
same Borrower and, in the case of LIBOR Rate Loans, having the same Interest Period made by
the Revolving Credit Lenders pursuant to Section 2.01 or Section 2.16 or (b) a borrowing under
Section 2.01(b) consisting of Term Loans of the same Type made to the Company and, in the
case of LIBOR Rate Loans, having the same Interest Period made by the Term Loan Lenders
pursuant to Section 2.01 or Section 2.16.
“Borrowing Notice” means a notice of a Borrowing, pursuant to Section 2.02(a), which,
if in writing, shall be substantially in the form of Exhibit A.
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“Borrowing Subsidiary” has the meaning specified in the introductory paragraph hereof.
“Borrowing Subsidiary Agreement” as the meaning specified in Section 2.15(a).
“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:
(a) if such day relates to any interest rate settings as to a LIBOR Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant
to this Agreement in respect of any such LIBOR Rate Loan, means any such day on which
dealings in deposits in Dollars are conducted by and between banks in the London interbank
eurodollar market;
(b) if such day relates to any interest rate settings as to a LIBOR Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect
of any such LIBOR Rate Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such LIBOR Rate Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a LIBOR Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings in
deposits in the relevant currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a LIBOR Rate Loan denominated in a currency
other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be
carried out pursuant to this Agreement in respect of any such LIBOR Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign exchange
business in the principal financial center of the country of such currency.
“Cash Collateralize” has the meaning specified in Section 2.05(g).
“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption 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 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
thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law”, regardless of the date enacted, adopted or issued.
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“Change of Control” means an event or series of events by which: (i) any Person or two
or more Persons acting in concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934), directly or indirectly, of
Voting Stock of the Company (or other securities convertible into such Voting Stock)
representing 20% or more of the combined voting power of all Voting Stock of the Company and
shall have maintained such beneficial ownership for 20 consecutive days; or (ii) during any
period of 24 consecutive months, commencing before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of the Company and
individuals whose nomination for election to the board of directors was approved by the board of
directors of the Company shall cease for any reason to constitute a majority of the board of
directors of the Company; or (iii) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the Company.
“Code” means the Internal Revenue Code of 1986.
“Commitments” means, with respect to each Lender, that Lender’s Revolving Credit
Commitment and/or Term Loan Commitment, as applicable.
“Communications” means, collectively, any notice, demand, communication,
information, document or other material provided by or on behalf of any Loan Party pursuant to
any Loan Document or the transactions contemplated therein which is distributed to the
Administrative Agent, the L/C Issuer or any Lender by means of electronic communications,
including through the Platform.
“Company” has the meaning specified in the introductory paragraph hereof.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus, to the
extent deducted in calculating such Consolidated Net Income, (i) Consolidated Interest Charges,
(ii) provisions for federal, state, local and foreign income taxes payable by the Company and its
Subsidiaries, (iii) depreciation and amortization expense, (iv) non-cash stock compensation
expenses of the Company and its Subsidiaries incurred in such period and (v) other non-cash
charges, minus, to the extent included in calculating such Consolidated Net Income, all non-cash
gains. For any period during which (a) a Subsidiary or business is acquired or (b) a Subsidiary
or business is disposed of, Consolidated EBITDA shall be calculated on a pro forma basis as if
such Subsidiary or business, as the case may be, had been acquired (and any related Indebtedness
incurred) or sold (and any related Indebtedness repaid), as the case may be, on the first day of
such period.
“Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt
discount, fees, charges and related expenses of the Company and its Subsidiaries in connection
with borrowed money (including capitalized interest) or the deferred purchase price of assets, in
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each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent
expense of the Company and its Subsidiaries with respect to such period under capital leases that
is treated as interest in accordance with GAAP.
“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date
to (b) Consolidated Interest Charges for such period.
“Consolidated Net Income” means, for any period, the consolidated net income of the
Company and its Subsidiaries for such period.
“Consolidated Net Worth” means, as of any date of determination, for the Company and
its Subsidiaries on a consolidated basis, Shareholders’ Equity of the Company and its
Subsidiaries on that date.
“Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate.”
“Conversion/Continuation Date” means any date on which, under Section 2.03, the
Company (a) converts Loans of one Type to the other Type or (b) continues as Loans of the same
Type, but with a new Interest Period, Loans having Interest Periods expiring on such date.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.
“Credit Facility” means, collectively, the Revolving Credit Facility and the Term Loan
Facility.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable
Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided that with respect to
a LIBOR Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including
any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Law.
“Defaulting Lender” means, subject to Section 2.17, any Lender that (a) has failed to (i)
fund all or any portion of the Loans or participations in L/C Obligations required to be funded by
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it hereunder within two Business Days of the date such Loans or participations were required to
be funded hereunder unless such Lender notifies the Administrative Agent and the Company in
writing that such failure is the result of such Lender’s determination that one or more conditions
precedent to funding (each of which conditions precedent, together with any applicable default,
shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the
Administrative Agent, the L/C Issuer or any other Lender any other amount required to be paid
by it hereunder (including in respect of its participation in Letters of Credit) within two Business
Days of the date when due, (b) has notified the Company, the Administrative Agent or the L/C
Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has
made a public statement to that effect (unless such writing or public statement relates to such
Lender’s obligation to fund a Loan hereunder and states that such position is based on such
Lender’s determination that a condition precedent to funding (which condition precedent,
together with any applicable default, shall be specifically identified in such writing or public
statement) cannot be satisfied), (c) has failed, within three Business Days after written request by
the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and
the Company that it will comply with its prospective funding obligations hereunder (provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of
such written confirmation by the Administrative Agent and the Company), (d) has, or has a
direct or indirect parent company that has, (i) become the subject of a proceeding under any
Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or
any other state or federal regulatory authority acting in such a capacity; provided that a Lender
shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity
interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
Lender or (e) has become the subject of a Bail-In Action. Any determination by the
Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (e) above
shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Defaulting Lender (subject to Section 2.17) upon delivery of written notice of such determination
to the Company, the L/C Issuer and each Lender.
“Dollar” and “$” mean lawful money of the United States.
“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 an Offshore Currency,
the equivalent amount in Dollars as reasonably determined by the Administrative Agent or the
L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such Offshore Currency.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.
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“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of
an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)
of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and 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 credit institution or investment firm
established in any EEA Member Country.
“Effective Date” means the first date all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section 4.01 (or, in the case of Section 4.01(b), waived by
the Person entitled to receive the applicable payment).
“EMU” means economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht Treaty of 1992 and the
Amsterdam Treaty of 1998.
“EMU Legislation” means legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency (whether
known as the euro or otherwise), being in part the implementation of the third stage of EMU.
“Environmental Action” means any action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential liability, investigation, proceeding,
consent order or consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment, including (a) by any Governmental Authority for enforcement,
cleanup, removal, response, remedial or other actions or damages and (b) by any Governmental
Authority or any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to waste or public
systems.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
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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 into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).
“ERISA Event” means: (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment
as a termination under Section 4041 or 4041A of ERISA or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published
by the Loan Market Association (or any successor thereto), as in effect from time to time.
“Euro” and “EUR” means the single currency of the participating member states of the
European Union.
“Eurodollar Reserve Percentage” means, for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect
for such day as prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without limitation, any
basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar
category of liabilities for a member bank of the Federal Reserve System in New York City.
“Event of Default” has the meaning specified in Section 8.01.
“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 overall net income (however denominated), franchise Taxes, and
branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized
11
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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 Foreign 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 Company under Section 11.15) or (ii) such Lender changes its
lending office, except in each case to the extent that, pursuant to Section 11.15, amounts with
respect to such Taxes were payable either to such Lender’s assignor immediately before such
Lender became a party hereto or to such Lender immediately before it changed its lending office,
(c) Taxes attributable to such Recipient’s failure (other than as a result of a Change in Law) to
comply with Section 3.01(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” means the Credit Agreement dated as of December 7, 2012,
among the Company, the various financial institutions party thereto as lenders and ▇▇▇▇▇ Fargo
Bank, National Association, as administrative agent thereunder.
“Existing Revolving Maturity Date” has the meaning specified in Section 2.18(a).
“Extension Deadline” has the meaning specified in Section 2.18(b).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with) and any current or future regulations or official
interpretations thereof.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System (or, if such day is not a Business Day, for the immediately preceding Business Day), as
published by the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that if such rate is not so published for any day which is a Business Day, the
average of the quotation for such day on such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by the Administrative Agent.
“Fee Letters” means, collectively, (a) the Administrative Agent Fee Letter and (b) the
U.S. Bank Fee Letter.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United
States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, such Defaulting
Lender’s Pro Rata Share of the outstanding L/C Obligations other than L/C Obligations as to
which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or
Cash Collateralized in accordance with the terms hereof.
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“GAAP” means generally accepted accounting principles in the United States set forth in
the opinions and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.
“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court,
administrative tribunal, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” means, as to any Person, any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity or level of income or
cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation or (iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part). The amount of any
Guarantee shall be deemed to be an amount 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 by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.
“Guaranteed Obligations” has the meaning specified in Section 10.01.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant
to any Environmental Law.
“Honor Date” has the meaning specified in Section 2.05(c)(i).
“Increased Amount Date” has the meaning specified in Section 2.16(a).
“Incremental Lender” has the meaning specified in Section 2.16(a).
“Incremental Loan Commitments” has the meaning specified in Section 2.16(a)(ii).
“Incremental Loans” has the meaning specified in Section 2.16(a)(ii).
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“Incremental Revolving Credit Commitment” has the meaning specified in Section
2.16(a)(ii).
“Incremental Revolving Credit Increase” has the meaning specified in Section 2.16(a)(ii).
“Incremental Term Loan” has the meaning specified in Section 2.16(a)(i).
“Incremental Term Loan Commitment” has the meaning specified in Section 2.16(a)(i).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of
the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable, accrued expenses in the ordinary course of business
and contingent purchase price obligations before the required event has occurred);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; provided that, if such Person has not assumed
or become liable for the payment of such indebtedness, the amount of such indebtedness shall be
equal to the lesser of (i) such indebtedness and (ii) the fair market value of such property subject
to such Lien;
(f) capital leases and Synthetic Lease Obligations;
(g) all sales by such Person of (i) accounts or general intangibles for money due or to
become due, (ii) chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables (collectively “receivables”), whether pursuant to a
purchase facility or otherwise, other than in connection with the disposition of the business
operations of such Person relating thereto or a disposition of defaulted receivables for collection
and not as a financing arrangement, and together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection
therewith; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of
any partnership or joint venture (other than a joint venture that is itself a corporation or limited
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4826-5029-7676\4
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof
as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date
shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
The amount of any Indebtedness represented by a sale of receivables at any time shall be the
amount of unrecovered capital or principal investment of the purchaser (other than the Company
or any of its Wholly-Owned Subsidiaries) thereof, excluding any amount representing yield or
interest earned on such investment.
“Indemnified Liabilities” has the meaning set forth in Section 11.05.
“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 any
Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning set forth in Section 11.05.
“Intangible Assets” means assets that are considered to be intangible assets under GAAP,
including customer lists, goodwill, computer software, copyrights, trade names, trademarks,
patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.
“Interest Payment Date” means, (a) as to any LIBOR Rate Loan, the last day of each
Interest Period applicable to such Loan and the Revolving Maturity Date or the Term Loan
Maturity Date, as applicable, provided that if any Interest Period for a LIBOR Rate Loan exceeds
three months, the respective dates that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates and (b) as to any Base Rate Loan, the last Business
Day of each March, June, September and December and the Revolving Maturity Date or the
Term Loan Maturity Date, as applicable.
“Interest Period” means, as to any LIBOR Rate Loan, the period commencing on the date
such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and
ending on the date one, two, three or six months thereafter, as selected by the applicable
Borrower in its Borrowing Notice or Notice of Conversion/Continuation; provided that:
(i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the following Business Day unless such following
Business Day falls in another calendar month, in which case such Interest Period shall
end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Revolving Maturity Date or the
Term Loan Maturity Date, as applicable.
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“Investment” means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of
assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
“IRS” means the United States Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application and any other document, agreement and instrument entered into by the L/C Issuer
and a Borrower or in favor of the L/C Issuer and relating to any such Letter of Credit.
“Judgment Currency” has the meaning specified in Section 11.20.
“Laws” means, collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof,
and all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not
having the force of law.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof
or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means ▇▇▇▇▇ Fargo in its capacity as issuer of Letters of Credit hereunder,
or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” means, as at any date of determination, the aggregate undrawn Dollar
Equivalent amount of all outstanding Letters of Credit plus the aggregate Dollar Equivalent of all
Unreimbursed Amounts, including all outstanding L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the
International Standby Practices 1998 Code published by the Institute of International Banking
Law & Practice (or such later version thereof as may be in effect at the time of such issuance),
such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available
to be drawn.
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“Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer.
“Lender Joinder Agreement” means a joinder agreement in form and substance
reasonably satisfactory to the Administrative Agent delivered in connection with Section 2.16.
“Lending Office” means, as to any Lender, the office or offices of such Lender described
as such in such Lender’s Administrative Questionnaire, or such other office or offices as a
Lender may from time to time notify the Company and the Administrative Agent.
“Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit may be
a commercial letter of credit or a standby letter of credit.
“Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in such form as shall at any time be in use by the L/C Issuer.
“Letter of Credit Sublimit” means an amount equal to the Dollar Equivalent of
$25,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Revolving Credit Commitments.
“Leverage Holiday” has the meaning set forth in Section 7.05(b).
“Leverage Ratio” means, as of any date of determination, for the Company and its
Subsidiaries on a consolidated basis, the ratio of (a) Total Indebtedness of the Company and its
Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters
ending on or immediately prior to such date.
“LIBOR” means,
(a) for any interest rate calculation with respect to a LIBOR Rate Loan
denominated in Dollars or any Offshore Currency other than Euros, the rate of interest
per annum determined on the basis of the rate for deposits in the applicable currency for a
period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01
Page (or any applicable successor page) at approximately 11:00 a.m. (London time) two
(2) Business Days prior to the first day of the applicable Interest Period (rounded upward,
if necessary, to the nearest 1/100th of 1%). If such rate is not available at such time for
any reason, then “LIBOR” shall be determined by the Administrative Agent to be the
arithmetic average of the rate per annum at which deposits in the applicable currency in
minimum amounts of at least $5,000,000 would be offered by first class banks in the
London interbank market to the Administrative Agent at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of the applicable Interest
Period for a period equal to such Interest Period;
(b) for any interest rate calculation with respect to a LIBOR Rate Loan
denominated in Euros for any Interest Period, the rate appearing on the Reuters Screen
EURIBOR01 Page (it being understood that this rate is the Euro interbank offered rate
(known as the “EURIBOR Rate”) sponsored by the Banking Federation of the European
Union and the Financial Markets Association) at 11:00 a.m., Brussels time, on the day on
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4826-5029-7676\4
which quotations would normally be given by prime banks in the London interbank
market for deposits in Euros for delivery on the first day of such Interest Period (provided
that if quotations would normally be given on more than one date, the day for such
Interest Period shall be the last of such dates), as the rate for deposits in Euros with a
maturity comparable to such Interest Period; and
(c) for any interest rate calculation with respect to a Base Rate Loan, the rate
of interest per annum determined on the basis of the rate for deposits in Dollars in
minimum amounts of at least $5,000,000 for a period equal to one month (commencing
on the date of determination of such interest rate) which appears on the Reuters Screen
LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London
time) on such date of determination, or, if such date is not a Business Day, then the
immediately preceding Business Day (rounded upward, if necessary, to the nearest
1/100th of 1%). If, for any reason, such rate does not appear on Reuters Screen
LIBOR01 Page (or any successor page) then “LIBOR” for such Base Rate Loan shall be
determined by the Administrative Agent to be the arithmetic average of the rate per
annum at which deposits in Dollars in minimum amounts of at least $5,000,000 would be
offered by first class banks in the London interbank market to the Administrative Agent
at approximately 11:00 a.m. (London time) on such date of determination for a period
equal to one month commencing on such date of determination.
Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding
for all purposes, absent manifest error. Notwithstanding the foregoing, if at any time LIBOR
(determined as provided above) shall be less than zero, LIBOR shall be deemed to be zero for all
purposes of this Agreement.
“LIBOR Rate” means a rate per annum (rounded upwards, if necessary, to the next higher
1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
1.00-Eurodollar Reserve Percentage
“LIBOR Rate Loan” means any Loan (other than a Base Rate Loan) bearing interest at a
rate based upon the LIBOR Rate as provided in Section 2.09. LIBOR Rate Loans may be
denominated in Dollars or, solely with respect to LIBOR Rate Loans which are Revolving Credit
Loans, in an Offshore Currency. All Loans denominated in an Offshore Currency must be
LIBOR Rate Loans.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).
“Loan” shall mean the collective reference to the Revolving Credit Loans and the Term
Loan, and “Loan” means any of such Loans.
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“Loan Documents” means this Agreement, each Note, each Borrowing Subsidiary
Agreement, the Fee Letters, each amendment of any of the foregoing and any other agreement,
from time to time, designated as a Loan Document by the Administrative Agent and the
Company.
“Loan Parties” means, collectively, the Company and each Borrowing Subsidiary.
“Material Acquisition” means an Acquisition by the Company or one of its Subsidiaries
for aggregate cash consideration of $100,000,000 or more.
“Material Adverse Effect” means: (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, or financial condition of the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against any Loan Party of any
Loan Document to which it is a party.
“Minimum Tranche” means, in respect of Loans comprising part of the same Borrowing,
or to be converted or continued under Section 2.03, (a) in the case of Base Rate Loans,
$1,000,000 or any higher integral multiple of $500,000, and (b) in the case of LIBOR Rate
Loans, the Dollar Equivalent amount of $5,000,000 or any higher integral multiple of 1,000,000
units of the Applicable Currency in excess thereof.
“Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender
at such time.
“Non-Extending Lender” has the meaning specified in Section 2.18(b).
“Note” means a Revolving Credit Note or a Term Loan Note.
“Notice Date” has the meaning specified in Section 2.18(a).
“Notice of Conversion/Continuation” means a notice in substantially the form of
Exhibit B.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Law naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
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“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Offshore Currency” means, at any time, Euros, Sterling, the lawful currency of Japan
and any Agreed Alternative Currency.
“Offshore Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Offshore Currency as
determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on
the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the
purchase of such Offshore Currency with Dollars.
“Offshore Currency Loan” means any LIBOR Rate Loan denominated in an Offshore
Currency.
“Offshore Currency Loan Sublimit” means, as to all Offshore Currencies in the
aggregate, $150,000,000.
“Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.
“Other Connection Taxes” means, with respect to any Recipient, Taxes 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 any
Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court, documentary, excise, property,
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, any Loan Document.
“Outstanding Amount” means (i) with respect to Revolving Credit Loans on any date, the
aggregate outstanding principal Dollar Equivalent amount thereof after giving effect to any
borrowings and prepayments or repayments of Revolving Credit Loans, as the case may be,
occurring on such date and (ii) with respect to L/C Obligations on any date, the Dollar
Equivalent amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other change in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursement of any outstanding
unpaid drawing under any Letter of Credit, any expiration of a Letter of Credit, or any reduction
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in the maximum amount available for drawing under any Letter of Credit taking effect on such
date.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry
rules on interbank compensation, and (b) with respect to any amount denominated in an Offshore
Currency, the rate of interest per annum at which overnight deposits in the applicable Offshore
Currency, in an amount approximately equal to the amount with respect to which such rate is
being determined, would be offered for such day by a branch or Affiliate of ▇▇▇▇▇ Fargo in the
applicable offshore interbank market for such currency to major banks in such interbank market.
“Participant” has the meaning specified in Section 11.07(d).
“Participant Register” has the meaning specified in Section 11.07(e).
“Participating Member State” means each such state so described in any EMU
Legislation.
“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), as amended.
“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Company or any ERISA Affiliate or to which the
Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of
a multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
“Permitted Acquisition” means an Acquisition that meets each of the following
requirements: (a) the Person to be acquired is, or the assets to be acquired are for use in, in the
same, a similar or a directly related line of business as the Company, (b) in the case of the
Acquisition of a Person, such Acquisition has been approved by the board of directors or similar
governing body and, if applicable, the shareholders of the Person to be acquired, (c) the
Company is and will be in pro forma compliance with each of the financial covenants contained
in Section 7.05 before and after giving effect to such Acquisition and (d) no Default shall exist at
the time of, or shall result from, such Acquisition.
“Permitted Liens” means such of the following as to which no enforcement, collection,
execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes,
assessments and governmental charges or levies to the extent not required to be paid under
Section 6.04; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’,
workmen’s, landlords’ and repairmen’s Liens and other similar Liens arising in the ordinary
course of business securing obligations; (c) pledges or deposits made or incurred in the ordinary
course of business in connection with worker’s compensation, unemployment insurance, old age
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benefits, social security obligations, taxes, assessments, other statutory or regulatory obligations,
performance bonds and bid, completion, guaranty, surety or similar bonds or other similar
charges (other than Liens arising under ERISA), good faith cash deposits or Liens on cash in
connection with ordinary course contracts or leases to which the Company or any Subsidiary is a
party or other cash deposits required to be made in the ordinary course of business, provided in
each case that the obligation is not for borrowed money and is not in connection with any failure
to pay any related amount, whether or not disputed, and (d) easements, rights of way,
restrictions, covenants, zoning requirements, leases, subleases and other encumbrances on title to
real property along with other minor defects and irregularities in title that do not render title to
the property encumbered thereby unmarketable or materially adversely affect the use of such
property for its present purposes.
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Company or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Platform” has the meaning specified in Section 11.02(c)(i).
“Prime Rate” means, at any time, the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall
be effective as of the opening of business on the day such change in such prime rate occurs. The
parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its
prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to
its customers or other banks.
“Priority Debt” means, as of any date, the sum (without duplication) of (a) unsecured
Indebtedness of Subsidiaries on such date (other than (i) Indebtedness owed to the Company or
another Subsidiary, (ii) Indebtedness of a Person outstanding at the time such Person is merged
or consolidated with, or becomes, a Subsidiary, (iii) endorsement of items for deposit or
collection of commercial paper received in the ordinary course of business, (iv) obligations of
any Subsidiary in respect of performance bonds and completion, guarantee, surety, and similar
bonds, in each case obtained in the ordinary course of business to support statutory and
contractual obligations arising in the ordinary course of business, (v) obligations arising from
trust arrangements related to payment of employee compensation and benefits, and
(vi) guaranties by a Loan Party of the Obligations) and (b) Indebtedness of the Company and its
Subsidiaries secured by Liens permitted by Section 7.01(o) on such date.
“Private Lender” has the meaning specified in Section 6.02.
“Pro Rata Share” means (a) in respect of the Revolving Credit Facility, with respect to
any Revolving Lender at any time, a fraction (expressed as a percentage, carried out to the ninth
decimal place), the numerator of which is the amount of the Revolving Credit Commitment of
such Lender at such time and the denominator of which is the amount of the Aggregate
Revolving Credit Commitments at such time; provided that if the commitment of each Lender to
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make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof and (b) in respect of the Term Loan
Facility, with respect to any Term Loan Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is the outstanding
principal amount of such Term Loan Lender’s Term Loans at such time and the denominator of
which is the amount of outstanding Term Loans. The Pro Rata Share of each Lender as of the
Effective Date is set forth opposite the name of such Lender on Schedule 2.01.
“Public Lender” has the meaning specified in Section 6.02.
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any L/C Issuer,
as applicable.
“Register” has the meaning set forth in Section 11.07(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the 30 day notice period has been waived.
“Request for Credit Extension” means (a) with respect to a Borrowing, a Borrowing
Notice, (b) with respect to a conversion or continuation of Loans, a Notice of
Conversion/Continuation and (c) with respect to an L/C Credit Extension, a Letter of Credit
Application.
“Required Lenders” means, as of any date of determination, Lenders having more than
50% of the sum of (a) Aggregate Revolving Credit Commitments (or, if the commitment of each
Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated, Lenders holding in the aggregate more than 50% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations being deemed “held” by such Lender for purposes of this
definition)) and (b) the outstanding principal amount of Term Loans at such time; provided that
the Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.
“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
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“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each
date of a Borrowing of a LIBOR Rate Loan denominated in an Offshore Currency, (ii) each date
of a continuation of a LIBOR Rate Loan denominated in an Offshore Currency pursuant to
Section 2.02, (iii) the last Business Day of each month, and (iv) such additional dates as the
Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect
to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Offshore Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect to the increased
amount), (iii) the last Business Day of each month, (iv) each date of any payment by the L/C
Issuer under any Letter of Credit denominated in an Offshore Currency, and (v) such additional
dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders
shall require.
“Revolving Credit Commitment” means, with respect to each Lender, that Lender’s
commitment to make Revolving Credit Loans and participate in Letters of Credit pursuant to
Article II.
“Revolving Credit Commitment Amount” means, with respect to each Lender, the
amount of the Revolving Credit Commitment set forth opposite that Lender’s name in Schedule
2.01 or on any Assignment and Assumption, unless said amount is reduced pursuant to Section
2.07 or 8.02 or increased pursuant to Section 2.16, in which event it means the amount to which
said amount is reduced or increased.
“Revolving Credit Facility” means the revolving loan facility established pursuant to
Section 2.01(a).
“Revolving Credit Lenders” means, collectively, all of the Lenders with a Revolving
Credit Commitment.
“Revolving Credit Loan” means any revolving loan (including any Offshore Currency
Loan) made to a Borrower pursuant to Section 2.01(a), and all such revolving loans collectively
as the context requires.
“Revolving Credit Note” means a promissory note made by a Borrower in favor of a
Revolving Credit Lender evidencing the Revolving Credit Loans made by such Revolving Credit
Lender, substantially in the form attached as Exhibit C-1, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or
extension thereof, in whole or in part.
“Revolving Maturity Date” means, except as extended pursuant to Section 2.18, the
earliest to occur of (i) July 21, 2022, (ii) the date of termination of the Revolving Credit
Commitment by the Company pursuant to Section 2.07, or (iii) the date of termination of the
Revolving Credit Commitment pursuant to Section 8.02.
“Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Offshore
Currency, same day or other funds as may be reasonably determined by the Administrative
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Agent to be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Offshore Currency.
“Sanctions” means any and all economic or financial sanctions, sectoral sanctions,
secondary sanctions, trade embargoes and anti-terrorism laws, including but not limited to those
imposed, administered or enforced from time to time by the U.S. government (including those
administered by OFAC or the U.S. Department of State), the United Nations Security Council,
the European Union, Her Majesty’s Treasury, or other relevant sanctions authority.
“Sanctioned Country” means at any time, a country, region or territory which is itself
identifiable as being the subject or target of any Sanctions (including, as of the Effective Date,
Cuba, Iran, North Korea, Sudan, Syria and the Crimea region of Ukraine).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC (including, without limitation, OFAC’s Specially
Designated Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the
U.S. Department of State, the United Nations Security Council, the European Union, Her
Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating, organized or
resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or
Persons described in clauses (a) and (b), including a Person that is deemed by OFAC to be a
Sanctions target based on the ownership of such legal entity by Sanctioned Person(s).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Company and its Subsidiaries as of that date determined in
accordance with GAAP.
“Spot Rate” for a currency means the rate determined by the Administrative Agent or the
L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot
rate for the purchase by such Person of such currency with another currency through its principal
foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior
to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial
institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for any such currency;
and provided, further, that the L/C Issuer may use such spot rate quoted on the date as of which
the foreign exchange computation is made in the case of any Letter of Credit denominated in an
Offshore Currency.
“Sterling” means the lawful currency of the United Kingdom and Northern Ireland.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the 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
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through one or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries
of the Company.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transaction or any
combination of any of the foregoing (including any option to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement and
(b) any and all transactions of any kind, and the related confirmations, which are subject to the
terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement or any other master agreement (any such master agreement, together with any
related schedules, a “Master Agreement”), including any such obligations or liabilities under any
Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for
any date prior to the date referenced in clause (a), the amount(s) determined as the ▇▇▇▇-to-
market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-
called synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as
the indebtedness of such Person (without regard to accounting treatment).
“TARGET Day” means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system
ceases to be operative, such other payment system (if any) determined by the Administrative
Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“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, fines, additions to tax or penalties applicable
thereto.
“Term Loan” means any term loan by a Lender to the Company pursuant to Section
2.01(b).
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“Term Loan Commitment” means, with respect to each Lender, that Lender’s
commitment to make Term Loans pursuant to Section 2.01(b).
“Term Loan Commitment Amount” means, with respect to each Lender, the amount of
the Term Loan Commitment set forth opposite that Lender’s name in Schedule 2.01 or on any
Assignment and Assumption, unless said amount is increased pursuant to Section 2.16, in which
event it means the amount to which said amount is reduced or increased.
“Term Loan Facility” means the term loan facility established pursuant to Section 2.01(b)
(including any new term loan facility established pursuant to Section 2.16).
“Term Loan Lender” shall mean a Lender which has a Term Loan Commitment or holds
a portion of the Term Loan.
“Term Loan Maturity Date” shall mean the earlier of (a) July 21, 2020 or (b) the date of
acceleration of the Term Loan pursuant to Section 8.02.
“Term Loan Note” shall mean a promissory note made by the Company in favor of a
Term Loan Lender evidencing the portion of the Term Loan made by such Term Loan Lender,
substantially in the form attached as Exhibit C-2, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements, restatements, renewals or
extension thereof, in whole or in part.
“Threshold Amount” means $50,000,000 (or the Dollar Equivalent thereof in any
currency other than Dollars).
“Total Indebtedness” means all Indebtedness of the Company and its Subsidiaries,
excluding (i) contingent obligations in respect of letters of credit and Guarantees (except, in each
case, to the extent constituting Guarantees in respect of Indebtedness of a Person other than the
Company or any Subsidiary), (ii) obligations under Swap Contracts and (iii) Indebtedness of the
Company to Subsidiaries and Indebtedness of Subsidiaries to the Company or to other
Subsidiaries.
“Total Outstandings” means the aggregate Outstanding Amount of all Revolving Credit
Loans and all L/C Obligations.
“Trigger Quarter” has the meaning set forth in Section 7.05(b).
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR Rate
Loan.
“U.S.” and “United States” mean the United States of America.
“U.S. Bank Fee Letter” means the letter agreement dated June 7, 2017 from U.S. Bank
National Association to (and acknowledged by) the Company.
“U.S. Person” means any Person that is a “United States Person” as defined in
Section 7701(a)(30) of the Code.
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“U.S. Tax Compliance Certificate” has the meaning assigned to such term in
Section 3.01(f).
“Unreimbursed Amount” has the meaning set forth in Section 2.05(c)(i).
“Voting Stock” means capital stock issued by a corporation, or equivalent interests in any
other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote
for the election of directors (or persons performing similar functions) of such Person, even if the
right so to vote has been suspended by the happening of such a contingency.
“▇▇▇▇▇ Fargo” means ▇▇▇▇▇ Fargo Bank, National Association, a national banking
association, and its successors.
“Wholly-Owned Subsidiary” of a Person means (a) any Subsidiary all of the outstanding
voting securities (other than directors’ qualifying shares and other nominal amounts of shares
held by Persons other than the Borrowers and their Subsidiaries in accordance with applicable
law) of which are at the time owned or controlled, directly or indirectly, 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, or (b) any partnership, limited liability company, unlimited
liability company, association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power (other than directors’ qualifying shares and
other nominal amounts of shares held by Persons other than the Borrowers and their Subsidiaries
in accordance with applicable law) of which are the time so owned or controlled. Unless
otherwise specified, all references herein to a “Wholly-Owned Subsidiary” or to “Wholly-Owned
Subsidiaries” shall refer to a Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries of the
Company.
“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.
“Withholding Agent” means any Loan Party and the Administrative 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.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of
similar import when used in any Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof.
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(ii) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
(iii) The term “including” is by way of example and not limitation.
(iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
(v) In the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and including.”
(vi) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.
(vii) Except to the extent otherwise specified, references herein to “fiscal
quarter” and “fiscal year” mean such fiscal periods of the Company.
1.03 Accounting Terms. (a) All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement shall
be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and either the Company or the Required
Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders), the
effectiveness of which amendment shall be retroactive to the date of such change in GAAP;
provided that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Company shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.
1.04 Rounding. Any financial ratio required to be maintained by the Company
pursuant to this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise expressly provided
herein: (a) references to Organization Documents, agreements (including the Loan Documents)
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and other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other modifications are not
prohibited by any Loan Document; and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
Law.
1.06 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Central time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the maximum
undrawn amount of such Letter of Credit in effect at such time; provided that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides
for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum undrawn amount of such
Letter of Credit after giving effect to all such increases, whether or not such maximum undrawn
amount is in effect at such time.
1.08 Exchange Rates; Currency Equivalents. (a) The Administrative Agent or the
L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used
for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any currency (other than Dollars)
for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by
the Administrative Agent or the L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with a Borrowing, conversion,
continuation or prepayment of a LIBOR Rate Loan or the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Borrowing, LIBOR Rate Loan or Letter of Credit is denominated in an
Offshore Currency, such amount shall be the relevant Offshore Currency Equivalent of such
Dollar amount (rounded to the nearest unit of such Offshore Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may
be.
1.09 Additional Offshore Currencies. (a) The Company may from time to time
request that LIBOR Rate Loans which are Revolving Credit Loans be made and/or Letters of
Credit be issued in a currency other than those specifically listed in the definition of “Offshore
Currency;” provided that such requested currency is a lawful currency (other than Dollars) that is
readily available and freely transferable and convertible into Dollars. In the case of any such
request with respect to the making of LIBOR Rate Loans, such request shall be subject to the
approval of the Administrative Agent and each of the Lenders; and in the case of any such
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request with respect to the issuance of Letters of Credit, such request shall be subject to the
approval of the Administrative Agent and the L/C Issuer.
(b) Any such request shall be made to the Administrative Agent not later than 11:00
a.m., 10 Business Days prior to the date of the desired Credit Extension (or such other time or
date as may be agreed by the Administrative Agent and, in the case of any such request
pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any
such request pertaining to LIBOR Rate Loans, the Administrative Agent shall promptly notify
each Lender thereof; and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of
any such request pertaining to LIBOR Rate Loans) or the L/C Issuer (in the case of a request
pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m.,
ten Business Days (or such shorter time as may have been agreed to by the Administrative Agent
and the L/C Issuer) after receipt of such request whether it consents, in its sole discretion, to the
making of LIBOR Rate Loans or the issuance of Letters of Credit, as the case may be, in such
requested currency.
(c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such
request within the time period specified in the preceding sentence shall be deemed to be a refusal
by such Lender or the L/C Issuer, as the case may be, to permit LIBOR Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders consent to making LIBOR Rate Loans in such requested currency, the Administrative
Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes
to be an Offshore Currency hereunder for purposes of any Borrowings of LIBOR Rate Loans;
and if the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in
such requested currency, the Administrative Agent shall so notify the Company and such
currency shall thereupon be deemed for all purposes to be an Offshore Currency hereunder for
purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.05, the Administrative
Agent shall promptly so notify the Company.
1.10 Change of Currency. (a) Each obligation of the Borrowers to make a payment
denominated in the national currency unit of any member state of the European Union that
adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at
the time of such adoption (in accordance with the EMU Legislation). If, in relation to the
currency of any such member state, the basis of accrual of interest expressed in this Agreement
in respect of that currency shall be inconsistent with any convention or practice in the London
interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on which such member
state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of
such member state is outstanding immediately prior to such date, such replacement shall take
effect, with respect to such Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to
reflect the adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
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(c) Each provision of this Agreement also shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time specify to be appropriate to
reflect a change in currency of any other country and any relevant market conventions or
practices relating to the change in currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Loans.
(a) Revolving Credit Loans. Subject to the terms and conditions set forth herein,
each Revolving Credit Lender severally agrees to make Revolving Credit Loans to the applicable
Borrower from time to time, on any Business Day during the Availability Period, in Applicable
Currencies in an aggregate principal Dollar Equivalent amount not to exceed at any time
outstanding the amount of such Revolving Credit Lender’s Revolving Credit Commitment
Amount; provided that after giving effect to any Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Revolving Credit Commitments, (ii) the aggregate Outstanding Amount of
the Revolving Credit Loans of any Lender plus such Lender’s Pro Rata Share of the Outstanding
Amount of all L/C Obligations shall not exceed the amount of such Revolving Credit Lender’s
Revolving Credit Commitment and (iii) after giving effect to any Borrowing of Offshore
Currency Loans, the aggregate principal Dollar Equivalent amount of all outstanding Offshore
Currency Loans shall not exceed the Offshore Currency Loan Sublimit. Within the limits of
each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms
and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under
Section 2.06 and reborrow under this Section 2.01. Revolving Credit Loans may be Base Rate
Loans or LIBOR Rate Loans, as further provided herein.
(b) Term Loans. Subject to the terms and conditions set forth herein, each Term
Loan Lender severally agrees to make a Term Loan to the Company in Dollars on the Effective
Date in a principal amount equal to that Term Loan Lender’s Term Loan Commitment Amount.
The total amount of Term Loans made hereunder on the Effective Date shall not exceed the
Aggregate Term Loan Commitment Amount. No amount of the Term Loans which are repaid or
prepaid by the Company may be reborrowed hereunder.
2.02 Procedures for Borrowing.
(a) Each Borrowing shall be made upon the irrevocable written notice of the
applicable Borrower (in the case of a Borrowing of Revolving Credit Loans) or the Company, as
applicable, delivered to the Administrative Agent in the form of a Borrowing Notice (which
notice must be received by the Administrative Agent prior to (i) 10:30 a.m. four Business Days
prior to the requested date of any Borrowing of Offshore Currency Loans, (ii) 11:00 a.m. three
Business Days prior to the requested date of any Borrowing of LIBOR Rate Loans denominated
in Dollars and (iii) 10:30 a.m. on the requested date of any Borrowing of Base Rate Loans), in
any such case, specifying:
(i) whether the Borrowing consists of Revolving Credit Loans and/or a Term
Loan;
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(ii) the amount of the Borrowing, which shall be in an aggregate amount not
less than the Minimum Tranche;
(iii) the date of the requested Borrowing, which shall be a Business Day;
(iv) the Type of Loans comprising the Borrowing;
(v) the duration of the Interest Period applicable to any LIBOR Rate Loans
included in such notice; if the Borrowing Notice fails to specify the duration of the
Interest Period for any Borrowing comprised of LIBOR Rate Loans, such Interest Period
shall be one month; and
(vi) in the case of a Borrowing comprised of Offshore Currency Loans, the
Applicable Currency.
(b) Following receipt of a Borrowing Notice, the Administrative Agent will promptly
notify each Lender of the amount of such Lender’s Pro Rata Share of the Borrowing. In the case
of a Borrowing comprised of Offshore Currency Loans, such notice will provide the approximate
amount of each Lender’s Pro Rata Share of the Borrowing, and the Administrative Agent will,
upon the determination of the Dollar Equivalent amount of the Borrowing as specified in the
Borrowing Notice, promptly notify each Lender of the exact Dollar Equivalent amount of such
Lender’s Pro Rata Share of the Borrowing. The Dollar Equivalent amount of any Borrowing in
an Offshore Currency will be determined by the Administrative Agent for such Borrowing on the
Revaluation Date therefor in accordance with Section 2.04(a).
(c) Each Lender will make the amount of its Pro Rata Share of each Borrowing
available to the Administrative Agent for the account of the applicable Borrower at the
Administrative Agent’s Office on the date of Borrowing requested by such Borrower in Same
Day Funds and in the requested currency (i) in the case of a Borrowing comprised of Loans in
Dollars, by 12:00 noon and (ii) in the case of a Borrowing comprised of Offshore Currency
Loans, by such time as the Administrative Agent may specify. The proceeds of all such Loans
will then be made available to the applicable Borrower by the Administrative Agent at such
office either by (i) crediting the account of the applicable Borrower on the books of ▇▇▇▇▇ Fargo
with the aggregate of the amounts made available to the Administrative Agent by the Lenders
and in like funds as received by the Administrative Agent or (ii) wire transfer of funds, in each
case in accordance with instructions received by (and reasonably acceptable to) the
Administrative Agent by the applicable Borrower.
(d) Except as otherwise provided herein, a LIBOR Rate Loan may be continued or
converted only on the last day of an Interest Period for such LIBOR Rate Loan. Unless the
Required Lenders otherwise consent, during the existence of a Default, no Borrower may elect to
have (i) a Loan in Dollars converted into or continued as a LIBOR Rate Loan or (ii) an Offshore
Currency Loan continued for an Interest Period exceeding one month.
(e) The Administrative Agent shall promptly notify the Borrowers and the Lenders of
the interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of
such interest rate. Each determination of an applicable LIBOR Rate by the Administrative Agent
shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are
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outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change
in the Prime Rate promptly following the public announcement of such change.
(f) After giving effect to all Borrowings, all conversions of Loans from one Type to
the other and all continuations of Loans as the same Type, there shall not be more than 12
Interest Periods in effect.
2.03 Conversion and Continuation Elections for Borrowings.
(a) Each Borrower may, upon irrevocable written notice to the Administrative Agent
in accordance with Section 2.03(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans, or as of the
last day of the applicable Interest Period, in the case of any LIBOR Rate Loans
denominated in Dollars, to convert any Loans borrowed by such Borrower (or any part
thereof in an amount not less than the Minimum Tranche) into Loans in Dollars of the
other Type; or
(ii) elect, as of the last day of the applicable Interest Period, to continue any
Loans borrowed by such Borrower having Interest Periods expiring on such day (or any
part thereof in an amount not less than the Minimum Tranche);
provided that if at any time the aggregate Dollar Equivalent amount of Offshore Currency
Loans in respect of any Borrowing is reduced, by payment, prepayment or conversion of part
thereof to be less than the Minimum Tranche, such Offshore Currency Loans shall automatically
be redenominated into Base Rate Loans in Dollars, and on and after such date the right of the
applicable Borrower to continue such Loans as, and convert such Loans into, Offshore Currency
Loans shall terminate.
(b) The applicable Borrower shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than (i) 11:00 a.m. at least three Business Days in
advance of the Conversion/Continuation Date, if the Loans are to be converted into or continued
as LIBOR Rate Loans denominated in Dollars, (ii) 10:30 a.m. at least four Business Days in
advance of the continuation date, if the Loans are to be continued as Offshore Currency Loans
and (iii) 10:30 a.m. on the Conversion/Continuation Date, if the Loans are to be converted into
Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued;
(C) the Type and Applicable Currency of Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into Base Rate Loans, the
duration of the requested Interest Period.
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(c) If upon the expiration of any Interest Period applicable to LIBOR Rate Loans in
Dollars, the applicable Borrower has failed to timely select a new Interest Period to be applicable
to such LIBOR Rate Loans or if any Default then exists, unless, in either case, such Borrower
has elected to and does repay such Loans on or prior to the expiration date of such Interest
Period, such Borrower shall be deemed to have elected to convert such LIBOR Rate Loans into
Base Rate Loans effective as of the expiration date of such Interest Period. If the applicable
Borrower has failed to select a new Interest Period to be applicable to Offshore Currency Loans
prior to the fourth Business Day in advance of the expiration date of the current Interest Period
applicable thereto as provided in Section 2.03(b), or if a Default shall then exist, such Borrower
shall be deemed to have elected to continue such Offshore Currency Loans on the basis of a one
month Interest Period. For the avoidance of doubt, following any deemed conversion or
continuation under this Section 2.03(c), provided that no Default is then continuing, the
Borrower shall have the right to convert or continue such Loans thereafter in accordance with
Section 2.03(a). For the further avoidance of doubt, notwithstanding any continuation or
conversion thereof (whether voluntary or involuntary), the principal amount of each Base Rate
Loan, Offshore Currency Loan, and LIBOR Rate Loan shall be due and payable at such times
and in such amounts as set forth in Section 2.08.
(d) The Administrative Agent will promptly notify each Lender of its receipt of a
Notice of Conversion/Continuation or, if no timely notice is provided by the applicable
Borrower, the Administrative Agent will promptly notify each Lender of the details of any
automatic conversion or continuation. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with respect to which the
notice was given held by each Lender.
2.04 Utilization of Commitments in Offshore Currencies. Notwithstanding
anything herein to the contrary, during the existence of an Event of Default under
Section 8.01(a), (f) or (g), upon the request of the Required Lenders, all or any part of any
outstanding Offshore Currency Loans shall be redenominated and converted into Base Rate
Loans in Dollars with effect from the last day of the Interest Period with respect to any such
Offshore Currency Loans. The Administrative Agent will promptly notify the applicable
Borrower of any such redenomination and conversion request.
2.05 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer
agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in
this Section 2.05, (1) from time to time on any Business Day during the Availability
Period, to issue Letters of Credit denominated in Dollars or one or more Offshore
Currencies for the accounts of the Borrowers, and to amend or extend Letters of Credit
previously issued by it, in accordance with clause (b) below, and (2) to honor drafts under
the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate
in Letters of Credit issued for the accounts of the Borrowers; provided that the L/C Issuer
shall not be obligated to make any L/C Credit Extension with respect to any Letter of
Credit, and no Revolving Credit Lender shall be obligated to participate in any Letter of
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Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would
exceed the Aggregate Revolving Credit Commitments, (y) the aggregate Outstanding
Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such
Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations would exceed the amount of such Revolving Credit Lender’s Revolving
Credit Commitment Amount or (z) the Outstanding Amount of the L/C Obligations
would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to
the terms and conditions hereof, the ability of the Borrowers to obtain Letters of Credit
shall be fully revolving and, accordingly, the Borrowers may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have
been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue (and, in the case of
clauses (B) and (C) will not issue) any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from
issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in effect on the
Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Effective Date and which the L/C
Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.05(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance
or last extension, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur
more than one year after the Revolving Maturity Date, unless all Revolving Credit
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer;
(E) unless the L/C Issuer otherwise agrees, such Letter of Credit is to
be denominated in a currency other than an Applicable Currency;
(F) any Revolving Credit Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory arrangements with
the Company or such Revolving Credit Lender such that the L/C Issuer will have
no Fronting Exposure with respect to such Revolving Credit Lender; or
(G) the beneficiary of such Letter of Credit is a Sanctioned Person.
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(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit
if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(iv) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article IX with respect to any acts taken or omissions suffered
by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be
issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to
such acts or omissions, and (B) as additionally provided herein with respect to the L/C
Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension
Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of any Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent (A) not
later than 11:00 a.m. at least two Business Days prior to the proposed issuance date or
date of amendment, as the case may be, of any Letter of Credit denominated in Dollars,
and (B) not later than 11:00 a.m. at least seven Business Days prior to the proposed
issuance date or date of amendment, as the case may be, of any Letter of Credit
denominated in an Offshore Currency; or in each case such later date and time as the
Administrative Agent and the L/C Issuer may agree in a particular instance in their sole
discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter
of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A)
the proposed issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount and Applicable Currency; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may reasonably require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a Business Day);
(3) the nature of the proposed amendment; and (4) such other matters as the L/C Issuer
may require. Additionally, the Company shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C
Issuer or the Administrative Agent may reasonably require.
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(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
applicable Borrower and, if not, the L/C Issuer will provide the Administrative Agent
with a copy thereof. Unless the L/C Issuer has received written notice from any
Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Article IV shall not
then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the applicable Borrower or
enter into the applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer’s usual and customary business practices. Immediately upon the issuance
of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to (but subject to Section 2.17), purchase from the
L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product
of such Revolving Credit Lender’s Pro Rata Share times the amount of such Letter of
Credit.
(iii) If any Borrower so requests in any applicable Letter of Credit Application,
the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit
that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-
month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, no Borrower shall be required to make a specific
request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the extension of such Letter of Credit at
any time to an expiry date not later than one year following the Revolving Maturity Date;
provided that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has
determined that it would not be permitted, or would have no obligation, at such time to
issue such Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.05(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension or (2) from
the Administrative Agent, any Revolving Credit Lender or any Borrower that one or
more of the applicable conditions specified in Section 4.02 is not then satisfied, and in
each such case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
L/C Issuer will also deliver to applicable Borrower and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.
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(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
a drawing under such Letter of Credit, the L/C Issuer shall notify the applicable Borrower
and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Offshore Currency, the applicable Borrower shall reimburse the L/C Issuer in such
Offshore Currency, unless (A) the L/C Issuer (at its option) shall have specified in such
notice that it will require reimbursement in Dollars, or (B) in the absence of any such
requirement for reimbursement in Dollars, the applicable Borrower shall have notified the
L/C Issuer promptly following receipt of the notice of drawing that the applicable
Borrower will reimburse the L/C Issuer in Dollars. In the case of any such
reimbursement in Dollars of a drawing under a Letter of Credit denominated in an
Offshore Currency, the L/C Issuer shall notify the applicable Borrower of the Dollar
Equivalent of the amount of the drawing promptly following the determination thereof.
Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by
the L/C Issuer under a Letter of Credit to be reimbursed in an Offshore Currency (each
such date, an “Honor Date”), the applicable Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such drawing and
in the Applicable Currency. If the applicable Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each Revolving
Credit Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in
Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Offshore Currency) (the “Unreimbursed Amount”), and the amount of
such Revolving Credit Lender’s Pro Rata Share thereof. In such event, the applicable
Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.02 for the principal amount
of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate
Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than
the delivery of a Borrowing Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.05(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant to
Section 2.05(c)(i) make funds available to the Administrative Agent for the account of
the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated
payments in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.05(c)(iii), each Revolving Credit
Lender that so makes funds available shall be deemed to have made a Base Rate Loan to
the applicable Borrower in such amount. The Administrative Agent shall remit the funds
so received to the L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by
a Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 (other
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than the delivery of a Borrowing Notice, which condition need not be satisfied) cannot be
satisfied or for any other reason, the applicable Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default Rate. In such event,
each Revolving Credit Lender’s payment to the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.05(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such
Revolving Credit Lender in satisfaction of its participation obligation under this
Section 2.05.
(iv) Until each Revolving Credit Lender funds its Loan or L/C Advance
pursuant to this Section 2.05(c) to reimburse the L/C Issuer for any amount drawn under
any Letter of Credit, interest in respect of such Revolving Credit Lender’s Pro Rata Share
of such amount shall be solely for the account of the L/C Issuer.
(v) Each Revolving Credit Lender’s obligation to make Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.05(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Revolving Credit Lender may have against the L/C
Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided that each Revolving Credit Lender’s
obligation to make Loans pursuant to this Section 2.05(c) is subject to the conditions set
forth in Section 4.02 (other than delivery by a Borrower of a Borrowing Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of any
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to be paid by
such Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.05(c)
by the time specified in Section 2.05(c)(ii), the L/C Issuer shall be entitled to recover
from such Revolving Credit Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the L/C Issuer at
a rate per annum equal to the applicable Overnight Rate from time to time in effect. A
certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of
Credit and has received from any Revolving Credit Lender such Revolving Credit
Lender’s L/C Advance in respect of such payment in accordance with Section 2.05(c), if
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the Administrative Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly from
any Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Revolving Credit
Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit Lender’s L/C
Advance was outstanding) in Dollars and in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.05(c)(i) is required to be returned under any of the
circumstances described in Section 11.06 (including pursuant to any settlement entered
into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned by such Revolving Credit Lender, at a rate per annum
equal to the applicable Overnight Rate from time to time in effect. The obligations of the
Revolving Credit Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Obligations Absolute. Subject to Section 2.05(f), the obligation of each Borrower
to reimburse the L/C Issuer for each drawing under each Letter of Credit issued to such Borrower
and to repay each L/C Borrowing in connection with each such Letter of Credit shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that
such Borrower may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under
such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for
the benefit of creditors, liquidator, receiver or other representative of or successor to any
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beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the availability of
the relevant Offshore Currency to any Borrower or in the relevant currency markets
generally; or
(vi) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Borrower or guarantor of the Obligations.
Each Borrower shall promptly examine a copy of each Letter of Credit requested by it and each
amendment thereto that is delivered to it and, in the event of any claim of noncompliance with
such Borrower’s instructions or other irregularity, such Borrower will immediately notify the
L/C Issuer. Each Borrower shall be conclusively deemed to have waived any such claim against
the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Revolving Credit Lender and each Borrower agree that,
in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility
to obtain any document (other than any sight draft, certificate or document expressly required by
such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any Revolving Credit
Lender for (i) any action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit requested by it; provided that this
assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of Section 2.05(e);
provided that anything in such clauses to the contrary notwithstanding, each Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to such Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered
by such Borrower which such Borrower proves were caused by the L/C Issuer’s willful
misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of such Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any notice or information
to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
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rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. (i) (A) Upon the request of the Administrative Agent, if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, the Borrowers shall immediately Cash Collateralize
the amount of such L/C Borrowing or (B) if, as of the Revolving Maturity Date, any L/C
Obligation for any reason remains outstanding, each Borrower shall immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations of all Letters of Credit issued
for its account.
(ii) Sections 2.06 and 8.02(c) set forth certain additional requirements to
deliver Cash Collateral hereunder. For purposes of this Section 2.05, Section 2.06 and
Section 8.02(c), “Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Revolving Credit Lenders,
as collateral for the L/C Obligations, cash or deposit account balances in an amount not
less than the then Outstanding Amount of L/C Obligations pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Revolving Credit Lenders). Derivatives of
such term have corresponding meanings. Each Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Revolving Credit Lenders,
a security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked, interest
bearing deposit accounts at ▇▇▇▇▇ Fargo.
(h) Applicability of ISP98 and UCP. (i) The rules of the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of
Credit and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce (the “ICC”) at the time of
issuance (including the ICC decision published by the Commission on Banking Technique and
Practice on April 6, 1998 regarding the European single currency (euro)) shall apply to each
commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for
the account of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of
Credit fee in Dollars for each Letter of Credit equal to the Applicable Rate times the daily
maximum Dollar Equivalent amount available to be drawn under such Letter of Credit (whether
or not such maximum Dollar Equivalent amount is then in effect under such Letter of Credit);
provided that, upon the request of the Required Lenders while any Event of Default exists, the
rate per annum for Letter of Credit fees shall be increased by 2%. Such Letter of Credit fees
shall be computed on a quarterly basis in arrears. Such Letter of Credit fees shall be due and
payable (i) on the last Business Day of each March, June, September and December; (ii) on the
Revolving Maturity Date; (iii) if any Letters of Credit are outstanding on the Revolving Maturity
Date, on the date on which the last of such Letters of Credit to be outstanding expires or
terminates; and (iv) on the date on which the Administrative Agent takes any action described in
Section 8.02(a), (b) or (c) (or on which any of such actions occurs automatically pursuant to the
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proviso to Section 8.02) and thereafter on demand. If there is any change in the Applicable Rate
during any quarter, the daily maximum amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Borrowers shall pay directly to the L/C Issuer for its own account a fronting fee in Dollars
with respect to each Letter of Credit as set forth in the Administrative Agent Fee Letter,
computed for each day such Letter of Credit is outstanding, payable (i) on the first Business Day
after the end of each March, June, September and December; (ii) on the Revolving Maturity
Date; (iii) if any Letters of Credit are outstanding on the Revolving Maturity Date, on the date on
which the last of such Letters of Credit to be outstanding expires or terminates; and (iv) on the
date on which the Administrative Agent takes any action described in Section 8.02(a), (b) or (c)
(or on which any of such actions occurs automatically pursuant to the proviso to Section 8.02)
and thereafter on demand. In addition, the Borrowers shall pay directly to the L/C Issuer for its
own account the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.
2.06 Prepayments.
(a) Each Borrower may, upon notice to the Administrative Agent, at any time and
from time to time voluntarily prepay Loans in whole or in part without premium or penalty;
provided that: (i) such notice must be received by the Administrative Agent not later than
11:00 a.m. (A) three Business Days prior to any date of prepayment of Offshore Currency Loans,
(B) three Business Days prior to any date of prepayment of LIBOR Rate Loans denominated in
Dollars and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of LIBOR
Rate Loans shall be in a principal Dollar Equivalent amount of $5,000,000 or a higher integral
multiple of 1,000,000 of the Applicable Currency; and (iii) any prepayment of Base Rate Loans
shall be in a principal amount of $500,000 or a higher integral multiple of $100,000 or, in each
case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment and the Type(s) of Loans to be prepaid, and the
Applicable Currency. The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If
such notice is given by any Borrower, such Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a LIBOR Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amount required pursuant to Section 3.04. Each such prepayment
shall be applied to the applicable Loans of the Lenders in accordance with their respective
applicable Pro Rata Shares.
(b) If for any reason the Total Outstandings at any time exceed the Aggregate
Revolving Credit Commitments then in effect (for any reason other than a change in currency
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exchange rates), the Borrowers shall immediately prepay Revolving Credit Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the
Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed
the Aggregate Revolving Credit Commitments then in effect.
(c) If on any Revaluation Date the Administrative Agent shall have determined that
the Total Outstandings exceed the Aggregate Revolving Credit Commitments by a Dollar
Equivalent amount of more than $1,000,000, due to a change in applicable rates of exchange
between Dollars and Offshore Currencies, then the Administrative Agent shall give notice to the
Borrowers that a prepayment is required under this Section 2.06(c), and the Borrowers agree
thereupon to make prepayments of Revolving Loans and/or Cash Collateralize the L/C
Obligations within one Business Day of such notice such that, after giving effect to such
prepayment the Total Outstandings do not exceed the Aggregate Revolving Credit
Commitments.
2.07 Termination or Reduction of Commitments. The Company may, upon notice
to the Administrative Agent, terminate the Aggregate Revolving Credit Commitments, or from
time to time permanently reduce the Aggregate Revolving Credit Commitments; provided that (i)
any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount of $10,000,000 or any higher integral multiple of $1,000,000, (iii) the
Company shall not terminate or reduce the Aggregate Revolving Credit Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Revolving Credit Commitments and (iv) if, after giving effect to
any reduction of the Aggregate Revolving Credit Commitments, the Letter of Credit Sublimit
exceeds the amount of the Aggregate Revolving Credit Commitments, such sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent will promptly
notify the Lenders of any such notice of termination or reduction of the Aggregate Revolving
Credit Commitments. Any reduction of the Aggregate Revolving Credit Commitments shall be
applied to the Revolving Credit Commitment of each Revolving Credit Lender according to its
Pro Rata Share. All facility fees accrued until the effective date of any termination of the
Aggregate Revolving Credit Commitments shall be paid on the effective date of such
termination. Unless previously terminated, the Term Loan Commitments shall terminate upon
the making of the Term Loans on the Effective Date.
2.08 Repayment of Loans.
(a) Revolving Credit Loans. The Borrowers shall repay to the Administrative Agent,
for the account of the Revolving Credit Lenders, on the Revolving Maturity Date the aggregate
principal amount of Revolving Credit Loans outstanding on such date.
(b) Term Loan. The Company shall repay to the Administrative Agent, for the
account of the Term Loan Lenders, on the Term Loan Maturity Date the aggregate principal
amount of Term Loans outstanding on such date.
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2.09 Interest.
(a) Subject to the provisions of clause (b) below, (i) each LIBOR Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the LIBOR Rate for such Interest Period plus the Applicable Rate; and (ii) each
Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b) If any amount payable by any Borrower under any Loan Document is not paid
when due (after giving effect to any applicable grace period), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Law. Furthermore, upon the request of the Required Lenders and upon notice to the Company,
while any Event of Default exists, the Borrowers shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Law. Accrued and unpaid interest
on past due amounts (including interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law.
2.10 Fees. In addition to certain fees described in clauses (i) and (j) of Section 2.05:
(a) Facility Fee. The Borrowers shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its applicable Pro Rata Share, a
facility fee in Dollars equal to the Applicable Rate times the actual daily amount of the
Aggregate Revolving Credit Commitments (or, if the Aggregate Revolving Credit Commitments
have terminated, on the Outstanding Amount of all Revolving Credit Loans and L/C
Obligations), regardless of usage. The facility fee shall accrue at all times during the
Availability Period (and thereafter so long as any Revolving Credit Loans or L/C Obligations
remain outstanding), including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day
of each March, June, September and December, commencing with the first such date to occur
after the Effective Date, and on the Revolving Maturity Date (and, if applicable, thereafter on
demand). The facility fee shall be calculated quarterly in arrears, and if there is any change in
the Applicable Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other Fees. (i) The Borrowers shall pay to the Arrangers and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Fee
Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
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(ii) The Borrowers shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.11 Computation of Interest and Fees and Dollar Equivalent Amounts;
Retroactive Adjustments of Applicable Rate. (a) All computations of interest for Base Rate
Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All computations of interest for
all Offshore Currency Loans denominated in Sterling (and in each other Offshore Currency that
is deemed by the Administrative Agent to have market practices that require calculation of
interest on the basis of a 365-day year) shall be made on the basis of a 365-day year and actual
days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as applicable, being paid
than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day
on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on
which it is made shall, subject to Section 2.13(a), bear interest for one day.
(b) Each determination of an interest rate or a Dollar Equivalent amount by the
Administrative Agent shall be conclusive in the absence of manifest error. The Administrative
Agent will, at the request of the Company or any Lender, deliver to the Company or such
Lender, as the case may be, a statement showing the quotations used by the Administrative
Agent in determining any interest rate or Dollar Equivalent amount.
2.12 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent, the L/C
Issuer and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect the
obligations of the Borrowers hereunder to pay any amount owing with respect to the Obligations.
In the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, each Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such
Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable), Applicable
Currency, amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in clause (a), each Lender and
the Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the
event of any conflict between the accounts and records maintained by the Administrative Agent
and the accounts and records of any Lender in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error.
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2.13 Payments Generally; Administrative Agent’s Clawback. (a) General. All
payments to be made by the Borrowers shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and
except with respect to principal of and interest on Loans denominated in an Offshore Currency,
all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the
date specified herein. Except as otherwise expressly provided herein, all payments by the
Borrowers hereunder with respect to principal and interest on Loans denominated in an Offshore
Currency shall be made to the Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the applicable Administrative Agent’s Office in such Offshore
Currency and in Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under this Agreement be
made in the United States. If, for any reason, any Borrower is prohibited by any Law from
making any required payment hereunder in an Offshore Currency, such Borrower shall make
such payment in Dollars in the Dollar Equivalent of the Offshore Currency payment amount.
The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent (i) after 2:00
p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Offshore Currency, shall in each case be
deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by any Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. 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 Section 2.02 and may, in reliance upon such
assumption, make available to the applicable 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 agrees to pay to the Administrative Agent
forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for
each day from and including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent (the “Compensation Period”) at the
Overnight Rate. If such Lender does not pay such amount forthwith upon the Administrative
Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the
applicable Borrower, and such Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate per annum equal to the rate
of interest applicable to the applicable Borrowing. If such 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 such Borrower the amount of such interest paid by
such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in
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such Borrowing. Any payment by such Borrower shall be without prejudice to any claim such
Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Borrower prior to the date on
which any payment is due to the Administrative Agent for the account of the Lenders or
the L/C Issuer hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if such
Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds
with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at the Overnight
Rate.
A notice of the Administrative Agent to any Lender or Borrower with respect to any
amount owing under this clause (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to any Borrower as
provided in the foregoing provisions of this Article II, and such funds are not made available to
such Borrower by the Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof,
the Administrative Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to
make Loans, to fund participations in Letters of Credit and to make payments pursuant to
Section 11.05(b) are several and not joint. The failure of any Lender to make any Loan, to fund
any such participation or to make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan,
to purchase its participation or to make its payment under Section 11.05(b).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.
2.14 Sharing of Payments by Lenders. 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 the Loans made by it, or the participations in L/C Obligations held by it resulting in
such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or
participations and accrued interest thereon greater than its pro rata share thereof as provided
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herein, then the Lender receiving such greater proportion shall (a) notify the Administrative
Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as
shall be equitable, so that the benefit 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
Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (x) the amount of such paying Lender’s required repayment to (y) the
total amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon; and
(ii) the provisions of this Section shall not be construed to apply to any
payment made by a Borrower pursuant to and in accordance with the express terms of
this Agreement providing for such non pro rata payment.
Each 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 such Borrower rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such Borrower in the
amount of such participation.
2.15 Borrowing Subsidiaries; Company as agent for Borrowing Subsidiaries. (a)
The Company may designate any Domestic Subsidiary or, with the written consent of the
Administrative Agent and each Revolving Credit Lender (which in each case shall not be
unreasonably withheld), any Foreign Subsidiary, as a Borrowing Subsidiary. Upon the receipt
and execution by the Administrative Agent of a Borrowing Subsidiary Agreement in the form of
Exhibit H-1 (a “Borrowing Subsidiary Agreement”) executed by such Subsidiary and the
Company, such Subsidiary shall be a Borrowing Subsidiary and a party to this Agreement.
(b) The obligation of each Revolving Credit Lender to make its first Loan to any
Borrowing Subsidiary or of the L/C Issuer to issue the first Letter of Credit for the account of
such Borrowing Subsidiary (whichever first occurs) is subject to the satisfaction of the condition
that the Administrative Agent shall have received the following:
(i) all documents as shall reasonably demonstrate the existence of such
Borrowing Subsidiary, the corporate power and authority of such Borrowing Subsidiary
to enter into, and the validity with respect to such Borrowing Subsidiary of, this
Agreement and the other Loan Documents to which it is a party and any other matters
relevant hereto (including an opinion of counsel if required by Section 4.03), all in form
and substance satisfactory to the Administrative Agent; and
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(ii) any governmental and third party approvals necessary or advisable in
connection with the execution, delivery and performance of this Agreement by such
Borrowing Subsidiary.
(c) Any Borrowing Subsidiary shall cease to be a Borrowing Subsidiary hereunder if
such Borrowing Subsidiary and the Company shall have executed and delivered to the
Administrative Agent a Borrowing Subsidiary Termination in the form of Exhibit H-2; provided
that at such time no Loans made to, or Letters of Credit issued for the account of, such
Borrowing Subsidiary are then outstanding and that at such time such Borrowing Subsidiary has
performed in full all other Obligations to be performed by it.
(d) Each Borrowing Subsidiary hereby irrevocably appoints and authorizes the
Company to take such action and deliver and receive notices hereunder as agent on its behalf and
to exercise such powers under this Agreement as delegated to it by the terms hereof, together
with all such powers as are reasonably incidental thereto. In furtherance of and not in limitation
of the foregoing, for administrative convenience of the parties hereto, the Administrative Agent
and the Lenders shall send all notices and communications to be sent to any Borrowing
Subsidiary solely to the Company and may rely solely upon the Company to receive all such
notices and other communications for and on behalf of each Borrowing Subsidiary. No Person
other than the Company (and its authorized officers and employees) may act as agent for any
Borrowing Subsidiary hereunder without the written consent of the Administrative Agent.
(e) The Obligations of any Borrowing Subsidiary shall be guaranteed by the
Company pursuant to Article X.
2.16 Incremental Loans and Commitments.
(a) At any time prior to the Revolving Maturity Date, the Company may by written
notice to the Administrative Agent elect to request the establishment of:
(i) one or more incremental term loan commitments (any such incremental
term loan commitment, an “Incremental Term Loan Commitment”) to make an
incremental term loan to the Company (any such incremental term loan, an “Incremental
Term Loan”); or
(ii) one or more increases in the Commitments, an “Incremental Revolving
Credit Commitment” and, together with the Incremental Term Loan Commitments, the
“Incremental Loan Commitments”) to make incremental revolving credit loans (any such
increase, an “Incremental Revolving Credit Increase” and, together with the Incremental
Term Loan, the “Incremental Loans”);
provided that (x) the total aggregate amount for all such Incremental Loan Commitments
pursuant to this Section 2.16(a) shall not exceed $250,000,000 and (y) the total aggregate amount
for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not
be less than a minimum principal amount of $20,000,000 (or such lesser amount to which the
Administrative Agent may agree). Each such notice shall specify the date (each, an “Increased
Amount Date”) on which the Company proposes that any Incremental Loan Commitment shall
be effective, which shall be a date not less than ten Business Days after the date on which such
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notice is delivered to Administrative Agent. The Company may invite any Lender, any Affiliate
of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the
Administrative Agent (and, in the case of an Incremental Revolving Credit Commitment, the L/C
Issuer), to provide an Incremental Loan Commitment (any such Person, an “Incremental
Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a
portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to
provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become
effective as of such Increased Amount Date; provided that:
(A) the Administrative Agent shall have received a certificate dated the
Increased Amount Date and signed by a Responsible Officer of the Company
certifying that the conditions specified in Sections 4.02(a) and (b) are satisfied
relative to such Credit Extension or Incremental Loan Commitment;
(B) the proceeds of any Incremental Loans shall be used in compliance
with Section 6.11;
(C) each Incremental Loan Commitment (and the Incremental Loans
made thereunder) shall constitute Obligations of the applicable Borrower(s) and
shall share in the guarantees and security, if any, supporting the other extensions
of credit hereunder on a pari passu basis;
(D) (1) in the case of each Incremental Term Loan (the terms of
which shall be set forth the relevant Lender Joinder Agreement):
(x) such Incremental Term Loan will mature and
amortize in a manner reasonably acceptable to the Administrative
Agent, the Incremental Lenders making such Incremental Term
Loan and the Company, but will not in any event have a maturity
date earlier than the Revolving Maturity Date; and
(y) except as provided in (x) above, except for
mechanical and non-material changes deemed appropriate by the
Administrative Agent to reflect the term rather than revolving
nature of the Incremental Term Loan, and except for pricing terms,
all terms and conditions applicable to any Incremental Term Loan
shall be the same as the terms and conditions applicable to the
initial Term Loans;
(2) in the case of each Incremental Revolving Credit Increase
(the terms of which shall be set forth in the relevant Lender Joinder Agreement):
(x) all terms (including pricing) and conditions
applicable to any Incremental Revolving Credit Increase shall be
the same as the terms and conditions applicable to the existing
Revolving Credit Loans; and
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(y) the outstanding Revolving Credit Loans and Pro
Rata Shares of L/C Obligations will be reallocated by the
Administrative Agent on the applicable Increased Amount Date
among the Revolving Credit Lenders (including the Incremental
Lenders providing such Incremental Revolving Credit Increase) in
accordance with their revised Pro Rata Shares (and the Revolving
Credit Lenders (including the Incremental Lenders providing such
Incremental Revolving Credit Increase) agree to make all
payments and adjustments necessary to effect such reallocation and
the Company shall pay any and all costs required pursuant to
Section 3.05 in connection with such reallocation as if such
reallocation were a repayment); and
(E) such Incremental Loan Commitments shall be effected pursuant to
one or more Lender Joinder Agreements executed and delivered by the Company,
the Administrative Agent and the applicable Incremental Lenders (which Lender
Joinder Agreement may, without the consent of any other Lenders, and
notwithstanding any provision of Section 11.01 to the contrary, effect such
amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section 2.16), which amendments may include, without
limitation, appropriate changes to the definitions of “Loans”, “Commitments” and
“Required Lenders”).
2.17 Defaulting Lenders
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as
such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in the definition of Required Lenders and the last sentence of
Section 11.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or
otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to
Section 11.09 shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer
hereunder; third, to Cash Collateralize the Fronting Exposure of the L/C Issuer with
respect to such Defaulting Lender in accordance with Section 2.05; fourth, as the
Company may request (so long as no Default or Event of Default exists), to the funding
of any Loan or funded participation in respect of which such Defaulting Lender has failed
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to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the
Company, to be held in a deposit account and released pro rata in order to (A) satisfy
such Defaulting Lender’s potential future funding obligations with respect to Loans and
funded participations under this Agreement and (B) Cash Collateralize the L/C Issuer’s
future Fronting Exposure with respect to such Defaulting Lender with respect to future
Letters of Credit issued under this Agreement, in accordance with Section 2.05; sixth, to
the payment of any amounts owing to the Lenders or the L/C Issuer as a result of any
judgment of a court of competent jurisdiction obtained by any Lender or the L/C Issuer
against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement; seventh, so long as no Default or Event of Default
exists, to the payment of any amounts owing to a Borrower as a result of any judgment of
a court of competent jurisdiction obtained by such Borrower against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (1) such payment is a payment of the principal
amount of any Loans or funded participations in Letters of Credit in respect of which
such Defaulting Lender has not fully funded its appropriate share, and (2) such Loans
were made or the related Letters of Credit were issued at a time when the conditions set
forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to
pay the Loans of, and funded participations in Letters of Credit owed to, all Non-
Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans
of, or funded participations in Letters of Credit owed to, such Defaulting Lender until
such time as all Loans and funded and unfunded participations in L/C Obligations are
held by the Lenders pro rata in accordance with the Commitments without giving effect
to Section 2.17(a)(iv). Any payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and
redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) Each Defaulting Lender which is a Revolving Credit Lender shall
be entitled to receive a Facility Fee for any period during which such Lender is a
Defaulting Lender only to extent allocable to the sum of (1) the outstanding
principal amount of the Revolving Credit Loans funded by it, and (2) its Pro Rata
Share of the stated amount of Letters of Credit for which it has provided Cash
Collateral pursuant to Section 2.05.
(B) Each Defaulting Lender which is a Revolving Credit Lender shall
be entitled to receive letter of credit commissions pursuant to Section 2.10 for any
period during which that Lender is a Defaulting Lender only to the extent
allocable to its Pro Rata Share of the stated amount of Letters of Credit for which
it has provided Cash Collateral pursuant to Section 2.05.
(C) With respect to any Facility Fee or letter of credit commission not
required to be paid to any Defaulting Lender which is a Revolving Credit Lender
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pursuant to clause (A) or (B) above, the Company shall (1) pay to each Non-
Defaulting Lender which is a Revolving Credit Lender that portion of any such
fee otherwise payable to such Defaulting Lender with respect to such Defaulting
Lender’s participation in L/C Obligations that has been reallocated to such Non-
Defaulting Lender which is a Revolving Credit Lender pursuant to clause
(iv) below, (2) pay to each L/C Issuer the amount of any such fee otherwise
payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s
Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the
remaining amount of any such fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender’s participation in L/C Obligations shall be reallocated
among the Non-Defaulting Lenders which are Revolving Credit Lenders in accordance
with their respective Pro Rata Shares (calculated without regard to such Defaulting
Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section
4.02 are satisfied at the time of such reallocation (and, upon notice to the Company of
such reallocation, unless the Company shall have otherwise notified the Administrative
Agent at such time, the Company shall be deemed to have represented and warranted that
such conditions are satisfied at such time), and (y) such reallocation does not cause the
aggregate credit exposure of any Non-Defaulting Lender to exceed such Non-Defaulting
Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of
any claim of any party hereunder against a Defaulting Lender arising from that Lender
having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as
a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash Collateral. If the reallocation described in clause (iv) above cannot,
or can only partially, be effected, the Company shall, without prejudice to any right or
remedy available to it hereunder or under law, Cash Collateralize the L/C Issuer’s
Fronting Exposure in accordance with the procedures set forth in Section 2.05.
(b) Defaulting Lender Cure. If the Company, the Administrative Agent and the L/C
Issuer agree in writing that a Revolving Credit Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable,
purchase at par that portion of outstanding Revolving Credit Loans of the other Revolving Credit
Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit to
be held pro rata by the Revolving Credit Lenders in accordance with the Revolving Credit
Commitments (without giving effect to Section 2.17(a)(iv), whereupon such Lender will cease to
be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to
fees accrued or payments made by or on behalf of the Company while that Lender was a
Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by
the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
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(c) New Letters of Credit. So long as any Revolving Credit Lender is a Defaulting
Lender, no L/C Issuer shall be required to issue, extend, renew or increase any Letter of Credit
unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
2.18 Extension of Revolving Maturity Date.
(a) Requests for Extension. The Company may, by notice to the Administrative
Agent (who shall promptly notify the Revolving Credit Lenders) not earlier than the date 60 days
prior to any anniversary of the Effective Date and not later than 30 days prior to any anniversary
of the Effective Date (the date of delivery of such notice to the Lenders, the “Notice Date”),
request on up to two (2) occasions during the term of this Agreement that each such Lender
extend its Lender’s Revolving Maturity Date for an additional one (1) year from the Revolving
Maturity Date then in effect (the “Existing Revolving Maturity Date”).
(b) Lender Elections to Extend. Each Revolving Credit Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given within 30 days of the
Notice Date (“Extension Deadline”), advise the Administrative Agent whether or not such
Revolving Credit Lender agrees to such extension (and each Revolving Credit Lender that
determines not to so extend its Revolving Maturity Date (a “Non-Extending Lender”) shall
notify the Administrative Agent of such fact promptly after such determination (but in any event
no later than the Extension Deadline)) and any Revolving Credit Lender that does not so advise
the Administrative Agent on or before the Extension Deadline shall be deemed to be a
Non-Extending Revolving Credit Lender. The election of any Revolving Credit Lender to agree
to such extension shall not obligate any other Revolving Credit Lender to so agree.
(c) Notification by Administrative Agent. The Administrative Agent shall notify the
Company of each Revolving Credit Lender’s determination under this Section 2.18 no later than
the Extension Deadline (or, if such date is not a Business Day, on the next preceding Business
Day).
(d) Additional Commitment Lenders. The Borrower shall have the right on or before
the Extension Deadline to replace each Non-Extending Revolving Credit Lender with, and add as
“Revolving Credit Lenders” under this Agreement in place thereof, one or more replacement
lenders (each, an “Additional Commitment Lender”) with the approval of the Administrative
Agent and the L/C Issuer (which approvals shall not be unreasonably withheld), each of which
Additional Commitment Lenders shall have entered into an agreement in form and substance
satisfactory to the Company and the Administrative Agent pursuant to which such Additional
Commitment Lender shall, effective as of the Extension Deadline, undertake a Revolving Credit
Commitment (and, if any such Additional Commitment Lender is already a Revolving Credit
Lender, its Revolving Credit Commitment shall be in addition to such Revolving Credit Lender’s
Revolving Credit Commitment hereunder on such date).
(e) Minimum Extension Requirement. If (and only if) the total of the Revolving
Credit Commitments of the Revolving Credit Lenders that have agreed so to extend their
Revolving Maturity Date and the additional Revolving Credit Commitments of the Additional
Commitment Lenders shall be more than 50% of the aggregate amount of the Revolving Credit
Commitments in effect immediately prior to the Extension Deadline, then, effective as of the
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Extension Deadline, the Revolving Maturity Date of each Extending Lender and of each
Additional Commitment Lender shall be extended to the date falling one (1) year after the
Existing Revolving Maturity Date (except that, if such date is not a Business Day, such
Revolving Maturity Date as so extended shall be the next preceding Business Day) and each
Additional Commitment Lender shall thereupon become a “Revolving Credit Lender” for all
purposes of this Agreement.
(f) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Revolving Maturity Date pursuant to this Section 2.18 shall not be effective with
respect to any Revolving Credit Lender unless:
(i) no Default or Event of Default shall have occurred and be continuing on
the date of such extension and after giving effect thereto;
(ii) the representations and warranties contained in this Agreement are true
and correct in all material respects on and as of the date of such extension and after
giving effect thereto, as though made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a specific date, as
of such specific date); and
(iii) on or before the Revolving Maturity Date of each Non-Extending
Revolving Credit Lender, (1) the Borrowers shall have paid in full the principal of and
interest on all of the Revolving Credit Loans made by such Non-Extending Revolving
Credit Lender to the Borrowers hereunder and (2) the Borrowers shall have paid in full
all other amounts owing to such Revolving Credit Lender hereunder.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) L/C Issuer. For purposes of this Section 3.01, the term “Lender” includes any
L/C Issuer.
(b) Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable Law. If any applicable Law (as
determined in the good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from any such payment by 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 has been made (including such deductions and withholdings applicable to additional
sums payable under this Section) 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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(c) 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 the payment of, any Other Taxes.
(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) 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 Company 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) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a Loan Party to a Governmental Authority, 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.
(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 any Loan Document shall
deliver to the Company and the Administrative Agent, at the time or times reasonably requested
by the Company or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Company 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 Company or the Administrative Agent, shall deliver
such other documentation prescribed by applicable Law or reasonably requested by the Company
or the Administrative Agent as will enable the Company or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such documentation set
forth in Sections 3.01(f)(ii)(A), (ii)(B) and (ii)(D) below) 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, in the event that the
applicable Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to such Borrower and
the Administrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of such Borrower or the Administrative Agent), executed
originals of IRS Form W-9 certifying that such Lender is exempt from U.S.
federal backup withholding tax;
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(B) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to such Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of such Borrower or the Administrative
Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income
tax treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, executed originals
of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an
exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “interest” article of such tax treaty and (y) with
respect to any other applicable payments under any Loan
Document, IRS Form W-8BEN or IRS Form W-8BEN-E
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 G-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
a Borrower within the meaning of Section 881(c)(3)(B) of the
Code, or a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”)
and (y) executed originals of IRS Form W-8BEN or IRS Form W-
8BEN-E; 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, IRS Form W-8BEN-E, a U.S. Tax
Compliance Certificate substantially in the form of Exhibit G-2 or
Exhibit G-3, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable; provided that if the
Foreign Lender is a partnership and 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 G-4 on
behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the applicable Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on
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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 such Borrower
or the Administrative Agent to determine the withholding or deduction required to
be made; and
(D) if a payment made to a Lender under any Loan Document would
be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Lender shall deliver to the Company and the Administrative
Agent at the time or times prescribed by law and at such time or times reasonably
requested by the Company 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 Company or the Administrative Agent as may be necessary for
the Company 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 date of this Agreement.
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 3.01 (including by the payment of additional amounts
pursuant to this Section 3.01), 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 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 indemnified party the amount paid over pursuant to this
paragraph (g) (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 (g), in no event will the indemnified party be required to pay any amount to an
indemnifying party pursuant to this paragraph (g) the payment of which would place the
indemnified party in a less favorable net after-Tax position than the indemnified party would
have been in if the indemnification payments or additional amounts giving rise to such refund
had never been paid. This paragraph shall not be construed to require any indemnified party to
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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) Indemnification of the Administrative Agent. Each Lender and the L/C Issuer
shall severally indemnify the Administrative Agent within ten (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 11.07(e) 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 any Loan Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes
the Administrative Agent to set off and apply any and all amounts at any time owing to such
Lender under any Loan Document or otherwise payable by the Administrative Agent to the
Lender from any other source against any amount due to the Administrative Agent under this
paragraph (h). The agreements in paragraph (h) shall survive the resignation and/or replacement
of the Administrative Agent.
(i) Survival. Each party’s obligations under this Section 3.01 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
3.02 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. In connection with any
request for a LIBOR Rate Loan or a Base Rate Loan as to which the interest rate is determined
with reference to LIBOR or a conversion to or continuation thereof, if for any reason (i) the
Administrative Agent shall determine (which determination shall be conclusive and binding
absent manifest error) that Dollar deposits are not being offered to banks in the London interbank
Eurodollar market for the applicable amount and Interest Period of such Loan, (ii) the
Administrative Agent shall determine (which determination shall be conclusive and binding
absent manifest error) that reasonable and adequate means do not exist for the ascertaining the
LIBOR Rate for such Interest Period with respect to a proposed LIBOR Rate Loan or any Base
Rate Loan as to which the interest rate is determined with reference to LIBOR or (iii) the
Required Lenders shall determine (which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such
Lenders of making or maintaining such Loans during such Interest Period, then the
Administrative Agent shall promptly give notice thereof to the Company. Thereafter, until the
Administrative Agent notifies the Company that such circumstances no longer exist, the
obligation of the Lenders to make LIBOR Rate Loans and the right of a Borrower to convert any
Loan to or continue any Loan as a LIBOR Rate Loan shall be suspended, and (i) in the case of
LIBOR Rate Loans, the applicable Borrower shall either (A) repay in full (or cause to be repaid
in full) the then outstanding principal amount of each such LIBOR Rate Loan together with
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accrued interest thereon (subject to Section 5.1(d)), on the last day of the then current Interest
Period applicable to such LIBOR Rate Loan; or (B) convert the then outstanding principal
amount of each such LIBOR Rate Loan to a Base Rate Loan; and (ii) Base Rate Loan shall be
determined without reference to LIBOR.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof, the
introduction of, or any change in, any applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any of the Lenders
(or any of their respective Lending Offices) with any request or directive (whether or not having
the force of law) of any such Governmental Authority, central bank or comparable agency, shall
make it unlawful or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate Loan or any
Base Rate Loan as to which the interest rate is determined by reference to LIBOR, such Lender
shall promptly give notice thereof to the Administrative Agent and the Administrative Agent
shall promptly give notice to the Company and the other Lenders. Thereafter, until the
Administrative Agent notifies the Company that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans, and the right of the Borrowers to convert
any Loan to a LIBOR Rate Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrowers may select only Base Rate Loans, (ii) all Base Rate
Loans shall cease to be determined by reference to LIBOR and (iii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current Interest Period
applicable thereto, the applicable Loan shall immediately be converted to a Base Rate Loan for
the remainder of such Interest Period.
3.03 Increased Costs.
(a) Increased Costs Generally. 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 advances, loans or other credit extended or participated in by,
any Lender (except any reserve requirement reflected in the LIBOR Rate) or the L/C
Issuer;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes and
(B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes) on its
loans, loan principal, letters of credit, commitments, or other obligations, or its deposits,
reserves, other liabilities or capital attributable thereto, or
(iii) impose on any Lender or the L/C Issuer 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;
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, the L/C Issuer or such
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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, the L/C Issuer or such other Recipient hereunder
(whether of principal, interest or any other amount) then, upon written request of such Lender,
the L/C Issuer or other Recipient, the Borrower shall promptly pay to any such Lender, the L/C
Issuer or other Recipient, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred
or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any
Change in Law affecting such Lender or the L/C Issuer or any lending office of such Lender or
such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity
requirements has or would have the effect of reducing the rate of return on such Lender’s or the
L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if
any, as a consequence of this Agreement, the Commitment 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 the
L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the
L/C Issuer’s holding company with respect to capital adequacy and liquidity), then from time to
time upon written request of such Lender or such L/C Issuer, the Company shall promptly pay to
such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company
for any such reduction suffered as reasonably determined by such Lender or the L/C Issuer
(which determination shall be made in good faith (and not on an arbitrary or capricious basis)
and consistent with similarly situated customers of the applicable Lender or the L/C Issuer under
agreements having provisions similar to this paragraph (b) after consideration of such factors as
such Lender or the L/C Issuer then reasonably determines to be relevant).
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and
delivered to the Company shall be conclusive absent manifest error. The Company shall pay
such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or
the L/C Issuer’s right to demand such compensation; provided that the Company shall not be
required to compensate a Lender or the L/C Issuer pursuant to this Section for any increased
costs incurred or reductions suffered more than six (6) months prior to the date that such Lender
or the L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the six-month period referred to above shall be extended to include
the period of retroactive effect thereof).
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(e) Mitigation. If any Lender requests compensation under Section 3.03, or requires
the Company to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or Section 3.03, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
3.04 Funding Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, each Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a
Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by such Borrower (for a reason other than default by such Lender in
making a Loan) to prepay, borrow, continue or convert any LIBOR Rate Loan on the date or in
the amount notified by such Borrower; or
(c) any assignment of a LIBOR Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section 11.15;
including any loss or expense arising from the liquidation or reemployment of funds obtained by
it to maintain such Loan or from fees payable to terminate the deposits from which such funds
were obtained. Each Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this
Section 3.04, each Lender shall be deemed to have funded each LIBOR Rate Loan made by it at
the LIBOR used in determining the LIBOR Rate for such Loan by a matching deposit or other
borrowing in the London interbank market for a comparable amount, for a comparable period
and in the same Applicable Currency, whether or not such LIBOR Rate Loan was in fact so
funded.
3.05 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender’s making a claim for compensation under Section 3.01 or 3.03,
the Company may replace such Lender in accordance with Section 11.15.
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3.06 Survival. All of the obligations of the Borrowers under this Article III shall
survive termination of the Commitments and repayment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of each Lender to make
its initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the Effective Date (or,
in the case of certificates of governmental officials, a recent date before the Effective Date) and
each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement;
(ii) a Note executed by each Borrower in favor of each Lender requesting a
Note;
(iii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as the Administrative
Agent may require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may
reasonably require to demonstrate that each Loan Party is duly organized or formed, and
that the Company is validly existing, in good standing and qualified to engage in business
in its jurisdiction of organization;
(v) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, in form and substance
satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of the Company certifying
(A) that the conditions specified in Section 4.01(c) and Sections 4.02(a) and (b) have
been satisfied, (B) that there has been no event or circumstance since the date of the
Audited Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect and (C) a calculation of the
Leverage Ratio as of the last day of the fiscal quarter of the Company most recently
ended prior to the Effective Date; and
(vii) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
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(b) The Administrative Agent shall have received satisfactory evidence that all
principal, interest, fees and other amounts owing under the Existing Credit Agreement (other
than contingent obligations in respect of letters of credit issued thereunder which become Letters
of Credit under this Agreement and inchoate indemnity obligations) have been (or shall
substantially contemporaneously with the effectiveness hereof be) repaid in full (it being
understood that such amounts may be repaid out of the proceeds of Loans hereunder).
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all
Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Effective
Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate
of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and
the Administrative Agent).
(d) The Borrower shall have paid or made arrangements to pay contemporaneously
with closing to the Administrative Agent, the Arrangers and the Lenders the fees set forth or
referenced in Section 2.10(b) and any other accrued and unpaid fees or commissions due
hereunder.
Without limiting the generality of the provisions of Section 9.03, for purposes of determining
compliance with the conditions specified in this Section 4.01, the Administrative Agent and each
Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Effective Date
specifying its objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor
any Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of
Loans to the other Type or a continuation of LIBOR Rate Loans) is subject to the following
conditions precedent:
(a) The representations and warranties of the Company, each Borrowing Subsidiary
and each other Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct in all material respects as of such earlier date, and
except that for purposes of this Section 4.02, the representations and warranties contained in
clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist or would result from such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall have received a
Request for Credit Extension in accordance with the requirements hereof.
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Each Request for Credit Extension (other than a Borrowing Notice requesting only a
conversion of Loans to the other Type or a continuation of LIBOR Rate Loans) submitted by any
Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit
Extension.
4.03 Initial Credit Extension to Each Borrowing Subsidiary. The obligation of
each Lender to make an initial Loan to, and of the L/C Issuer to issue any Letter of Credit for the
account of, each Borrowing Subsidiary following any designation of such Borrowing Subsidiary
as a Borrower hereunder pursuant to Section 2.15 is subject to the Administrative Agent’s receipt
on or before the date of such initial Credit Extension of each of the following, in form and
substance satisfactory to the Administrative Agent and dated such date, and in sufficient copies
for each Lender:
(a) Certified copies of the resolutions of the board of directors (or equivalent
governing body) of such Borrowing Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement and each other Loan Document to
which such Borrowing Subsidiary is or will be a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to this Agreement
and such other Loan Documents.
(b) A certificate of the Secretary or an Assistant Secretary of such Borrowing
Subsidiary certifying the names and true signatures of the officers of such Borrowing Subsidiary
authorized to sign this Agreement and each other Loan Document to which such Borrowing
Subsidiary is or will be a party and the other documents to be delivered hereunder.
(c) Such documents and certifications as the Administrative Agent may reasonably
require to demonstrate that such Borrowing Subsidiary is duly organized or formed, and that
such Borrowing Subsidiary is validly existing, in good standing (or equivalent) and qualified to
engage in business in its jurisdiction of organization.
(d) A certificate signed by a duly authorized officer of the Company, dated as of the
date of such initial Credit Extension, certifying that such Borrowing Subsidiary shall have
obtained all governmental and third party authorizations, consents, approvals (including
exchange control approvals) and licenses required under applicable Laws necessary for such
Borrowing Subsidiary to execute and deliver this Agreement and each other Loan Document to
which it is a party and to perform its Obligations hereunder and thereunder.
(e) The documentation referred to in Section 2.15 with respect to such Borrowing
Subsidiary.
(f) A favorable opinion of counsel to such Borrowing Subsidiary, dated the date of
such initial Credit Extension, in form and substance satisfactory to the Administrative Agent.
(g) Such other approvals, opinions or documents as any Lender, through the
Administrative Agent, may reasonably request.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company and each Borrowing Subsidiary represents and warrants to the
Administrative Agent and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party
(a) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of
its incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on
its business and (ii) execute, deliver and perform its obligations under each Loan Document to
which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of
each jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification or license and (d) is in compliance with all Laws, except in
each case referred to in clause (b)(i), (c) or (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect. No Loan Party nor any Subsidiary
thereof is an EEA Financial Institution.
5.02 Authorization; No Contravention. The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party have been duly
authorized by all necessary corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person’s Organization Documents, (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under, (i) any Contractual
Obligation to which such Person is a party or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject, in
each case except as could not reasonably be expected to have a Material Adverse Effect, or
(c) violate any Law.
5.03 Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization or other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is
party thereto. This Agreement constitutes, and each other Loan Document when so delivered
will constitute, a legal, valid and binding obligation of such Loan Party that is a party thereto,
enforceable against such Loan Party in accordance with its terms.
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, (ii) fairly present the financial condition of the Company and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
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noted therein and (iii) show all material indebtedness and other liabilities, direct or contingent, of
the Company and its Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the Company and its
Subsidiaries dated April 30, 2017, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein and (ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements through the Effective Date,
there has been no event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Company after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or
against the Company or any of its Subsidiaries or against any of their properties or revenues that
(a) purport to affect this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or (b) either individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
5.07 Environmental Compliance.
(a) The operations and properties of the Company and each of its Subsidiaries
comply in all material respects with all applicable Environmental Laws and Environmental
Permits, all past non-compliance with such Environmental Laws and Environmental Permits has
been resolved without material ongoing obligations or costs, and no circumstances exist that
could be reasonably likely to (i) form the basis of an Environmental Action against the Company
or any of its Subsidiaries or any of their properties that could reasonably be expected to have a
Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law that could reasonably
be expected to have a Material Adverse Effect.
(b) Except as could not reasonably be expected to have a Material Adverse Effect,
none of the properties currently owned or operated by the Company or any of its Subsidiaries is
listed or proposed for listing on the National Priorities List under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 or on the Comprehensive
Environmental Response, Compensation and Liability Information System maintained by the
U.S. Environmental Protection Agency or any analogous foreign, state or local list or, to the best
knowledge of the Company, is adjacent to any such property.
(c) All Hazardous Materials generated, used, treated, handled or stored at or
transported to or from any property currently or formerly owned or operated by the Company or
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any of its Subsidiaries have been disposed of in a manner not reasonably expected to have a
Material Adverse Effect.
5.08 Taxes. The Company and its Subsidiaries have filed all federal, state and other
material tax returns and reports required to be filed, and have paid all federal, state and other
material Taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP and those that could not reasonably be
expected to have a Material Adverse Effect. There is no proposed tax assessment against the
Company or any Subsidiary that would, if made, have a Material Adverse Effect.
5.09 ERISA Compliance.
(a) No ERISA Event has occurred or is reasonably expected to occur with respect to
any Plan that is reasonably expected to result in a Material Adverse Effect.
(b) As of the last annual actuarial valuation date, the funding target attainment
percentage, as defined in Section 303 of ERISA, of each Plan exceeds 90% except with respect
to any Plan the unfunded current liability of which does not exceed the Threshold Amount.
(c) Neither the Company nor any ERISA Affiliate has incurred or is reasonably
expected to incur any Withdrawal Liability that is reasonably expected to result in a Material
Adverse Effect.
(d) Except as could not reasonably be expected to have a Material Adverse Effect,
neither the Company nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated,
within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
5.10 Subsidiaries. As of the Effective Date, the Company has no Subsidiaries other
than those specifically disclosed in Schedule 5.10. Schedule 5.10 sets forth the jurisdiction of
organization of each Subsidiary as of the Effective Date.
5.11 Margin Regulations; Investment Company Act.
(a) No Borrower 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 issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under
each Letter of Credit, not more than 25% of the value of the assets of the Company and its
Subsidiaries on a consolidated basis subject to the provisions of Section 7.01 or subject to any
restriction contained in any agreement or instrument between the Borrowers and any Lender or
any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will
be margin stock.
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(b) None of the Company, any Person Controlling the Company, or any Subsidiary is
or is required to be registered as an “investment company” under the Investment Company Act
of 1940.
5.12 Disclosure. No report, financial statement, certificate or other information
furnished in writing by or on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or, when taken as a whole, 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 (the “Projections”), the Company and the Borrowing Subsidiaries represent
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time, it being understood that the Projections are as to future events and are not
to be viewed as facts, the Projections are subject to significant uncertainties and contingencies,
many of which are beyond the Company’s and the Borrowing Subsidiaries’ control, that no
assurance can be given that any particular Projections will be realized and the actual results
during the period or periods covered by any such Projections may differ significantly from the
projected results and such differences may be material.
5.13 Compliance with Laws. Each of the Company and each Subsidiary is in
compliance with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which such requirement of Law or
order, writ, injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or in which any violations of such requirements would not, in the aggregate
for all such violations, have a Material Adverse Effect.
5.14 OFAC; Anti-Terrorism; Etc. Neither the Company nor any of its Subsidiaries
or, to their knowledge, any of their Related Parties (a) is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the United States (50
U.S.C. App. §§ 1 et seq.), (b) is in violation of (i) the Trading with the Enemy Act, (ii) any of the
foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V) or any enabling legislation or executive order relating thereto, (iii) any Sanctions or
Anti-Money Laundering Laws or (iv) the PATRIOT Act or (c) is a Sanctioned Person. No part
of the proceeds of any Credit Extension will be unlawfully used directly or indirectly to fund any
operations in, finance any investments or activities in or make any payments to, a Sanctioned
Person or a Sanctioned Country, or in any other manner that will result in any violation by any
Person (including any Lender, any Arranger, the Administrative Agent or the L/C Issuer) of any
Anti-Corruption Laws or Sanctions. The Company has implemented and maintains in effect
policies and procedures designed to ensure compliance by the Company, its Subsidiaries and
their respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-
Money Laundering Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their
respective officers and employees and to the knowledge of the Borrower its directors and agents,
are in compliance with Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions in
all material respects.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder (other than inchoate indemnity obligations) shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company and the Borrowing
Subsidiaries shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02
and 6.03) cause each Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in
form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of each fiscal
year, a consolidated balance sheet of the Company and its Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited
and accompanied by a report and opinion of PricewaterhouseCoopers, LLP or another
independent certified public accountant of nationally recognized standing, which report and
opinion shall be prepared in accordance with generally accepted auditing standards and shall not
be subject to any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit and which report shall state that such financial statements
present fairly the financial position of the Company and its Subsidiaries as of the date and for the
period indicated in conformity with GAAP; and
(b) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the
portion of the fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the
Company as fairly presenting the financial condition, results of operations, shareholders’ equity
and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 6.02(c), the
Company shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in derogation of the obligation of the Company to furnish
the information and materials described in clauses (a) and (b) above at the times specified
therein.
6.02 Certificates; Other Information. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
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(a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible
Officer of the Company;
(b) promptly after any request by the Administrative Agent or any Lender, copies of
any detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Company by independent
accountants in connection with the accounts or books of the Company or any Subsidiary, or any
audit of any of them;
(c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Company,
and copies of all annual, regular, periodic and special reports and registration statements which
the Company may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(d) promptly, and in any event within ten (10 Business Days after receipt thereof by
any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency regarding financial or
other operational results of any Loan Party or any Subsidiary thereof that could reasonably be
expected to have a Material Adverse Effect; and
(e) promptly, such additional information regarding the business, financial or
corporate affairs of the Company or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time reasonably
request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c)
(to the extent any such documents are included in materials otherwise filed with the SEC) may
be delivered electronically and, if so delivered, shall be deemed to have been delivered on the
date (i) on which the Company posts such documents, or provides a link thereto, on the
Company’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on
which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that (i) the Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Company to deliver such paper copies until
a written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Company shall notify (which may be by facsimile or electronic mail) the
Administrative Agent and each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, upon the request of the Administrative Agent or any
Lender, the Company shall deliver paper copies of the Compliance Certificates required by
Section 6.02(a) to the Administrative Agent or such Lender. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
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maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Company with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arrangers will make available to the Lenders and the L/C Issuer Communications by posting
such Communications on IntraLinks the Platform and (b) certain of the Lenders may be “public-
side” Lenders (i.e., Lenders that do not wish to receive material non-public information with
respect to any Borrower or its securities) (each, a “Public Lender”). Each Borrower hereby
agrees that (w) all Communications that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by marking Communications
“PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the
Arrangers the L/C Issuer and the Lenders to treat such Communications as either publicly
available information or not material information (although it may be sensitive and proprietary)
with respect to the Borrowers or their respective securities for purposes of United States federal
and state securities laws; (y) all Communications marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Communications that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.”
6.03 Notices. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Subsidiary, (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or any Subsidiary and any
Governmental Authority or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary, including pursuant to any
applicable Environmental Law, in each case that could reasonably be expected to have a Material
Adverse Effect;
(c) of the occurrence of any ERISA Event that could reasonably be expected to have
a Material Adverse Effect; and
(d) of any material change in accounting policies or financial reporting practices by
the Company or any Loan Party.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Company setting forth details of the occurrence referred to therein
and stating what action the Company has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
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6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable (a) all Tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets and (b) all lawful claims which, if unpaid, would by law become a Lien upon
its property; provided that neither the Company nor any of its Subsidiaries shall be required to
pay or discharge (i) any such Tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are being maintained, or (ii)
any such Tax, assessment, charge or claim that could not reasonably in the aggregate be expected
to have a Material Adverse Effect.
6.05 Preservation of Existence, Etc. Preserve and maintain its corporate existence,
rights (charter and statutory) and franchises; provided that the Company and each of its
Subsidiaries may consummate any merger, consolidation or sale of assets permitted under
Section 7.02, and provided, further, that neither the Company nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors of the Company or such
Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company or such Subsidiary, as the case may be, and that the loss thereof
could not, individually or in the aggregate, have a Material Adverse Effect, and provided,
further, that no Subsidiary (other than a Borrowing Subsidiary) shall be required to preserve its
corporate existence if such failure to preserve its corporate existence could not, individually or in
the aggregate, have a Material Adverse Effect.
6.06 Maintenance of Properties. Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted, provided that this Section shall not prevent the
Company or any Borrowing Subsidiary from discontinuing the operation and the maintenance of
any of its properties if such discontinuance is desirable in the conduct of its business and the
Company has concluded that such discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies insurance with respect to its properties and business against loss or damage
of the kinds customarily insured against by Persons engaged in the same or similar business, of
such types and in such amounts as are customarily carried under similar circumstances by such
other Persons; provided that the Company and its Subsidiaries may instead self-insure to the
same general extent as other manufacturing companies of similar size as the Company or such
Subsidiary and to the extent consistent with prudent business practice.
6.08 Compliance with Laws. Comply in all material respects with the requirements
of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently conducted or in
which failure to comply could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records. Maintain proper books of record and account in conformity
with GAAP consistently applied.
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6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the Lenders’ expense and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice to the
Company; provided that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors) may do any of the
foregoing at the expense of the Company at any time during normal business hours and without
advance notice.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions to refinance certain
existing Indebtedness of the Company and for working capital, capital expenditures and general
corporate purposes not in contravention of any Law or of any Loan Document. Without limiting
the foregoing, the Company shall not use or permit the use of the proceeds of any Credit
Extension in a manner inconsistent with its representation and warranty set forth in the second
sentence of Section 5.14.
6.12 Compliance with Environmental Laws. (a) Comply, and cause each of its
Subsidiaries to comply, with all applicable Environmental Laws and Environmental Permits, (b)
obtain and renew and cause each of its Subsidiaries to obtain and renew all Environmental
Permits necessary for its operations and properties and (c) conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous
Materials from any of its properties, required by Environmental Laws, other than, in the case of
(a) through (c), such failures the consequences of which in the aggregate would not have a
Material Adverse Effect; provided that neither the Company nor any of its Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation (other than inchoate indemnity obligations) hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company and each Borrowing
Subsidiary shall not, nor shall they permit any Subsidiary to, directly or indirectly:
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:
(a) Permitted Liens;
(b) the Liens existing on the Effective Date and described on Schedule 7.01;
(c) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company or becomes a Subsidiary of
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the Company or at the time of acquisition of such property by the Company or a Borrowing
Subsidiary, whether or not the Indebtedness secured by such Lien is assumed by the Company or
a Borrowing Subsidiary; provided that such Liens were not created in contemplation of such
merger, consolidation or acquisition and do not extend to any assets other than those of the
Person so merged into or consolidated with the Company or such Subsidiary or acquired by the
Company or such Subsidiary (other than property that is an improvement to or is acquired for
specific use in connection with the subject property);
(d) Liens on receivables of the Company or any Subsidiary (and in property securing
or otherwise supporting such receivables) in favor of the Company;
(e) Liens on receivables of any kind (and in property securing or otherwise
supporting such receivables) in connection with the agreements for limited recourse or non-
recourse sales by the Company or any of its Subsidiaries for cash of such receivables or interests
therein, provided that (A) any such agreement is of a type and on terms customary for
comparable transactions in the good faith judgment of the Company, (B) such agreement does
not create any interest in any asset other than receivables (and property securing or otherwise
supporting such receivables) and proceeds of the foregoing and (C) on any date of determination,
the aggregate face value of such receivables shall not exceed at any time outstanding
$200,000,000;
(f) Liens created under any agreement relating to the sale, transfer, or other
disposition of assets permitted hereunder, if such Liens relate solely to the assets to be sold,
transferred, or otherwise disposed of;
(g) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Company or any
Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;
(h) Liens arising with respect to repurchase obligations arising in the ordinary course
of the cash management activities of the Company or its Subsidiaries;
(i) judgment liens and judicial attachment liens not constituting an Event of Default
under Section 8.01(h);
(j) any interest or title of a lessor or licensor under any operating lease or license;
(k) Liens on cash securing Letters of Credit as required under this Agreement;
(l) licenses, leases, or subleases granted to other Persons in the ordinary course of
business and not interfering in any material respect with the business of the Borrower or any
Guarantor;
(m) Liens securing obligations incurred to pay annual premiums for property, casualty
or liability insurance policies maintained by the Company or any Subsidiary, provided that such
Liens attach only to insurance policies and proceeds thereof, and pledges and deposits and other
Liens securing liability for reimbursement or indemnification obligations of (including
obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers
providing property, casualty, or liability insurance to the Company or any Subsidiary);
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(n) the replacement, extension or renewal of any Lien permitted by this Section upon
or in the same property theretofore subject thereto or the replacement, extension or renewal
(without increase in the principal amount of Indebtedness (except for any increase attributable to
any premium or fee payable in connection with such replacement, extension, or renewal)) of the
Indebtedness secured thereby; and
(o) additional Liens securing Indebtedness, which Liens are not otherwise permitted
by paragraphs (a) through (n) above, provided that, at the time of creation, assumption or
incurrence thereof and immediately after giving effect thereto and to the application of the
proceeds therefrom, secured Priority Debt outstanding does not exceed $100,000,000 in
aggregate principal amount.
7.02 Fundamental Changes. Merge or consolidate with or into any Person or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of the assets of the Company and its Subsidiaries taken as a whole
(whether now owned or hereafter acquired) to any Person, except that any Subsidiary of the
Company may merge or consolidate with or into or make any such conveyance, transfer, lease or
other disposition to any other Subsidiary of the Company, and except that any Subsidiary of the
Company may merge into or make any such conveyance, transfer, lease or other disposition to
the Company, and the Company or any Subsidiary of the Company may merge with any other
Person so long as (a) in the case of any merger involving the Company, the Company is the
surviving corporation, and (b) otherwise, the surviving corporation is a Subsidiary of the
Company, provided, in each case, that no Default shall have occurred and be continuing at the
time of such proposed transaction or would result therefrom.
7.03 Investments. Make any Investment, except:
(a) Investments in cash equivalents and other cash management related-investments
consistent with the investment policy from time to time adopted by the Company’s board of
directors;
(b) Investments by the Company in any Wholly-Owned Subsidiary or by any
Subsidiary in the Company or a Wholly-Owned Subsidiary;
(c) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;
(d) Guarantees arising in the ordinary course of business and Guarantees of
Indebtedness permitted under Section 7.09;
(e) Investments made to consummate Permitted Acquisitions;
(f) investments in mutual funds related to non-qualified, deferred compensation
plans, not to exceed the plan obligations;
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(g) investments held in connection with the settlement, satisfaction, or enforcement of
obligations or claims due or owing to the Company or any Subsidiary or as security for any such
obligations or claim;
(h) investments in the form of advances to employees in the ordinary course of
business for moving, relocation and travel expenses and other loans to employees for any lawful
purpose;
(i) investments at no time aggregating more than $5,000,000 in the form of
promissory notes, securities, and other non-cash consideration received in connection with any
sales, transfers, or other dispositions permitted by Section 7.02;
(j) Investments in existence on the Effective Date and listed on Schedule 7.03; and
(k) any other Investment that, when made, does not cause the aggregate amount of
Investments permitted solely by this clause (j) to exceed 15% of Consolidated Net Worth.
7.04 Accounting Changes. Make or permit any material change in accounting
policies or reporting practices, except as permitted by GAAP or, with respect to Foreign
Subsidiaries, the applicable GAAP equivalent.
7.05 Financial Covenants.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the last date of any fiscal quarter of the Company to be less than 3.5 to 1.0.
(b) Leverage Ratio. Permit the Leverage Ratio at any time of the Company to be
greater than 3.50 to 1.00; provided that if a Material Acquisition is consummated within such
fiscal quarter (any such fiscal quarter designated as such by the Company in writing to the
Administrative Agent being the “Trigger Quarter”), then the Leverage Ratio may be greater than
3.50 to 1.00, but shall not exceed 4.00 to 1.00, for the period of four fiscal quarters ending on the
last day of such Trigger Quarter and the periods of four fiscal quarters ending on the last day of
each of the next succeeding three fiscal quarters (each such four-quarter period, a “Leverage
Holiday”); provided further that, the Leverage Ratio shall return to less than or equal to 3.50 to
1.00 no later than the end of the fourth fiscal quarter next following the Trigger Quarter. There
shall be no more than one (1) Leverage Holiday during the term of this Agreement.
7.06 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Company and its
Subsidiaries on the date hereof or any business reasonably related or incidental thereto.
7.07 Transactions with Affiliates. Enter into any material transaction of any kind
with any Affiliate of the Company, whether or not in the ordinary course of business, other than
on fair and reasonable terms substantially as favorable to the Company or such Subsidiary as
would be obtainable by the Company or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to (a) transactions between or among the Company and any of its Wholly-Owned
Subsidiaries or between and among any Wholly-Owned Subsidiaries, (b) any transaction with an
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Affiliate or Subsidiary not prohibited by Section 7.03, (c) employment, indemnification, and
compensation arrangements (including arrangements made with respect to benefits, bonuses and
equity-based awards) entered into in the ordinary course of business with members of the board
of directors, officers, employees or consultants of the Company or a Subsidiary, and (d)
payments by the Company and the Subsidiaries pursuant to tax sharing agreements among the
Company and the Subsidiaries on customary terms that require each party to make payments
when such taxes are due or refunds received of amounts equal to the income tax liabilities and
refunds generated by each such party calculated on a separate return basis and payments to the
party generating tax benefits and credits of amounts equal to the value of such tax benefits and
credits made available to the group by such party.
7.08 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) other than repurchases of stock of the
Company provided such repurchases are in compliance with Regulation U of the FRB or to
extend credit to others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
7.09 Priority Debt. Permit the aggregate outstanding principal amount of Priority
Debt at any time to be greater than 20% of Consolidated Net Worth, determined as of the most
recent date for which Company financial statements have been delivered pursuant to Section
6.01.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
within three days after the same becomes due, any interest on any Loan or on any L/C Obligation
or any fee due hereunder or (iii) within five days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Company or any Borrowing Subsidiary fails to perform
or observe any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03(a), 6.05,
6.11 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in clause (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Company or any other Loan Party
herein, in any other Loan Document or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when made or deemed made;
or
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(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), after the passage of any grace period or cure period applicable thereto, in respect of
any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount or (B) fails to observe or perform, after the
passage of any grace period or cure period applicable thereto, any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event and the passage of any grace period
or cure period applicable thereto occurs, the effect of which default or other event under clause
(A) or (B) of this Section 8.01(e)(i) is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee
to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract) or similar
event resulting from (A) any event of default under such Swap Contract as to which the
Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Company or
any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Company or such Subsidiary as a result thereof is greater than the Threshold
Amount; provided that this clause (e) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if
such sale or transfer is permitted hereunder and under the documents providing for such
Indebtedness, and provided further, that an Event of Default under this clause (e) caused by the
occurrence of a breach or default with respect to Indebtedness in the aggregate in excess of the
Threshold Amount shall be cured for purposes of this Agreement upon the Person asserting such
breach or default waiving such breach or default or upon the Company or a Subsidiary curing
such breach or default if, at the time of such waiver or such cure the Administrative Agent has
not exercised any rights or remedies with respect to an Event of Default under this clause (e); or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all
or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of such Person and
the appointment continues undischarged or unstayed for 60 days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or unstayed for 60 days,
or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Company or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they become due, or
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(ii) any writ or warrant of attachment or execution or similar process is issued or levied against
all or any material part of the property of any such Person and is not released, vacated or fully
bonded within 45 days after its issue or levy; or
(h) Judgments. There is entered against the Company or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to which the insurer
does not dispute coverage) or (ii) any one or more non-monetary final judgments that have, or
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor upon such
judgment or order or (B) there is a period of 45 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability of
the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount in excess of the Threshold Amount, or (ii) the Company or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA under
a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party
or any other Person contests in any manner the validity or enforceability of any Loan Document;
or any Loan Party denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) declare by written notice to the Company the commitment of each Revolving
Credit Lender to make Revolving Credit Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare by written notice to the Company the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrowers;
(c) require that the Borrowers Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and
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(d) exercise on behalf of itself and the Lenders all rights and remedies available to it
and the Lenders under the Loan Documents or applicable Law;
provided that upon the occurrence of an actual or deemed entry of an order for relief with respect
to any Borrower under the Bankruptcy Code of the United States, the obligation of each Lender
to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal and interest) payable to the Lenders and the L/C Issuer
(including Attorney Costs and amounts payable under Article III), ratably among them in
proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the
L/C Issuer in proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the
Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;
and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to
the Company or as otherwise required by Law.
Subject to Section 2.05(c), amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.
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ARTICLE IX
AGENT
9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby
irrevocably appoints ▇▇▇▇▇ Fargo to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders
and the L/C Issuer, and neither any Borrower nor any other Loan Party shall have rights as a
third party beneficiary of any of such provisions. It is understood and agreed that the use of the
term “agent” herein or in any other Loan Documents (or any other similar term) with reference to
the Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead such term is used as a
matter of market custom, and is intended to create or reflect only an administrative relationship
between contracting parties.
9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with
the Borrowers 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.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or
by the other 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
expressly provided for herein or in the other Loan Documents), provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document or
applicable Law, including for the avoidance of doubt any action that may be in violation of the
automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any information
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relating to any of the Borrowers or any of their respective Affiliates that is communicated to or
obtained by the Person serving as the 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 (i)
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
shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the
absence of its own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Company, a Lender or the L/C Issuer.
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 herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, 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 herein, other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled
to rely upon, 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, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender
or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer 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
Company), 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.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its 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
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syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.
9.06 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Company. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, with the consent of the Company (absent a continuing
Default), not to be unreasonably withheld to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in the United States. If
no such successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation
Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above. Whether or not a successor has been appointed, such resignation
shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to
clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by
applicable Law, by notice in writing to the Company and such Person, remove such Person as
Administrative Agent and, with the consent of the Company (absent a continuing Default), not to
be unreasonably withheld appoint a successor. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days (or such
earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then
such removal shall nonetheless become effective in accordance with such notice on the Removal
Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date
(as applicable), (1) the retiring or removed Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that in the case of
any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C
Issuer under any of the Loan Documents, the retiring or removed Administrative Agent shall
continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (2) except for any indemnity payments owed to the retiring or removed
Administrative Agent, all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender and the
L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment
as Administrative Agent hereunder, such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring or removed Administrative Agent
(other than any rights to indemnity payments owed to the retiring or removed Administrative
Agent), and the retiring or removed Administrative Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents. The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such successor. After the
retiring or removed Administrative Agent’s resignation or removal hereunder and under the other
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Loan Documents, the provisions of this Article and Sections 11.04 and 11.05 shall continue in
effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring or removed Administrative Agent was acting as Administrative Agent.
(d) Any resignation by ▇▇▇▇▇ Fargo as Administrative Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, (ii) the
retiring L/C Issuer shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring L/C Issuer to effectively
assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and
the L/C Issuer acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties 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 the L/C Issuer also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any other Lender or
any of their Related Parties 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.
9.08 Administrative Agent May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations 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 L/C Issuer and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer
and the Administrative Agent and their respective agents and counsel and all other amounts due
the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.05(i) and (j), 2.10 and
11.04) 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 judicial proceeding is hereby authorized by each Lender and the L/C Issuer 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 and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.10 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
9.09 Cash Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent to (and the Administrative Agent agrees that, so long as it has no
knowledge that a Default exists or would result therefrom, it will upon the request of the
Company), release any Cash Collateral granted to it or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Revolving Credit Commitments and
payment in full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit or (ii) subject to Section 11.01, if approved,
authorized or ratified in writing by the Required Lenders. Upon request by the Administrative
Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s
authority to release any Cash Collateral pursuant to this Section 9.09.
9.10 Other Agents; Arrangers and Managers. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a “syndication agent,”
“joint lead arranger,” or “joint book manager” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such Lenders, those
applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other
Persons so identified in deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE X
GUARANTEE
10.01 Unconditional Guarantee. For valuable consideration, receipt whereof is hereby
acknowledged, and to induce each Lender to make Credit Extensions to and on account of the
Borrowing Subsidiaries, to induce the L/C Issuer to issue Letters of Credit hereunder and to
induce the Administrative Agent to act hereunder, the Company hereby unconditionally and
irrevocably guarantees to each Lender, the L/C Issuer and the Administrative Agent the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of all Obligations of
any Borrowing Subsidiary, whether for principal, interest, fees, expenses or otherwise, whether
direct or indirect, absolute or contingent or now existing or hereafter arising (such Obligations
being the “Guaranteed Obligations”). Without limiting the generality of the foregoing, the
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Company’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any Borrowing Subsidiary to the Administrative Agent, the L/C Issuer or
any other Lender under this Agreement but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving
any Borrowing Subsidiary. This is a guarantee of payment and not of collection merely.
10.02 Guarantee Absolute. The Company guarantees that the Guaranteed Obligations
will be paid strictly in accordance with the terms of this Agreement, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Lender or the Administrative Agent with respect thereto. The Obligations of
the Company under this Article X are independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against the Company to enforce this Article X,
irrespective of whether any action is brought against any Borrowing Subsidiary or whether any
Borrowing Subsidiary is joined in any such action or actions. The liability of the Company
under this guarantee shall be irrevocable, absolute and unconditional irrespective of, and the
Company hereby irrevocably waives any defense it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to
departure from this Agreement;
(c) any taking, exchange, release or non-perfection of any collateral or any taking,
release or amendment or waiver of or consent to departure from any other guaranty, for all or any
of the Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate structure or existence of
any Borrowing Subsidiary; or
(e) any other circumstance (including any statute of limitations to the fullest extent
permitted by applicable Law) which might otherwise constitute a defense available to, or a
discharge of, the Company, any Borrowing Subsidiary or a guarantor, other than the defense of
payment in full of the Guaranteed Obligations.
This guaranty shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be
returned by any Lender, the L/C Issuer or the Administrative Agent upon the insolvency,
bankruptcy or reorganization of any Borrowing Subsidiary or otherwise, all as though such
payment had not been made.
10.03 Waivers. The Company hereby expressly waives promptness, diligence, notice
of acceptance, presentment, demand for payment, protest, any requirement that any right or
power be exhausted or any action be taken against any Borrowing Subsidiary or against any
other guarantor of all or any portion of the Total Outstandings, and all other notices and demands
whatsoever.
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(a) The Company hereby waives any right to revoke this guaranty, and acknowledges
that this guaranty is continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future and regardless of whether the Total Outstandings are reduced to
zero at any time or from time to time.
(b) The Company acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated herein and that the waivers set forth in
this Article X are knowingly made in contemplation of such benefits.
10.04 Subrogation. The Company will not exercise any rights that it may now or
hereafter acquire against any Borrowing Subsidiary or any other insider guarantor that arise from
the existence, payment, performance or enforcement of the Guaranteed Obligations under this
Agreement, including any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Administrative Agent,
the L/C Issuer or any other Lender against a Borrowing Subsidiary or any other insider guarantor
or any collateral, whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including the right to take or receive from a Borrowing Subsidiary or any
other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim, remedy or right, unless and until all
of the Guaranteed Obligations and all other amounts payable under this guaranty shall have been
paid in full in cash and the Commitments shall have terminated. If any amount shall be paid to
the Company in violation of the preceding sentence at any time prior to the later of the payment
in full in cash of the Guaranteed Obligations and all other amounts payable under this guaranty
and the termination of the Commitments, such amount shall be held in trust for the benefit of the
Administrative Agent, the L/C Issuer and the other Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations and all other
amounts payable under this guaranty, whether matured or unmatured, in accordance with the
terms of this Agreement, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this guaranty thereafter arising. The Company acknowledges that it will
receive direct and indirect benefits from the financing arrangements contemplated by this
Agreement and that the waiver set forth in this section is knowingly made in contemplation on
such benefits.
10.05 Survival. This guaranty is a continuing guarantee and shall (a) remain in full
force and effect until payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this guaranty and the termination of the Commitments, (b) be binding upon the
Company, its successors and assigns, (c) inure to the benefit of and be enforceable by each
Lender (including each assignee Lender pursuant to Section 11.07), the L/C Issuer and the
Administrative Agent and their respective successors, transferees and assigns and (d) shall be
reinstated if at any time any payment to a Lender, the L/C Issuer or the Administrative Agent
hereunder is required to be restored by such Lender, the L/C Issuer or the Administrative Agent.
Without limiting the generality of the foregoing clause (c), each Lender may assign or otherwise
transfer its interest in any Loan to any other Person, and such other Person shall thereupon
become vested with all the rights in respect thereof granted to such Lender herein or otherwise.
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ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Company or any other
Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the
Company or the applicable Loan Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided that no such amendment, waiver
or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any fees or
other amounts payable hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; provided that only the consent of the Required Lenders
shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the
Borrowers to pay interest or Letter of Credit fees at the Default Rate;
(e) change Section 2.14 or Section 8.03 or any provision of this Agreement providing
for the pro rata nature of disbursements by the Lenders in a manner that would alter the pro rata
sharing of payments or disbursements required thereby without the written consent of each
Lender;
(f) amend Section 1.09, amend the definition of “Offshore Currency” or amend the
first sentence of Section 2.15 without, in each case, the written consent of each Lender;
(g) change any provision of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender;
(h) except as permitted under Section 9.09, release the Company from its obligations
under Article X without the written consent of each Lender; or
(i) extend the expiry date of any Letter of Credit beyond the date which is one year
after the Revolving Maturity Date without the written consent of each Lender;
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and, provided, further, that (i) no amendment, waiver or consent shall, unless in writing and
signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of
the L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of
Credit issued or to be issued by it, (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other Loan Document,
(iii) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto and (iv) the Administrative Agent and the Company shall be
permitted to amend any provision of the Loan Documents (and such amendment shall become
effective without any further action or consent of any other party to any Loan Document) if the
Administrative Agent and the Company shall have jointly identified an obvious error or any
error, ambiguity, defect or inconsistency or omission of a technical or immaterial nature in any
such provision. Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent hereunder, except
that the Commitment of such Lender may not be increased or extended without the consent of
such Lender.
Notwithstanding anything in this Agreement to the contrary, each Lender hereby
irrevocably authorizes the Administrative Agent on its behalf, and without further consent, to
enter into amendments or modifications to this Agreement (including, without limitation,
amendments to this Section 11.01) or any of the other Loan Documents or to enter into
additional Loan Documents as the Administrative Agent reasonably deems appropriate in order
to effectuate the terms of Section 2.16 (including, without limitation, as applicable, (i) to permit
the Incremental Lenders to share ratably in the benefits of this Agreement and the other Loan
Documents and (ii) to include the Incremental Loan Commitments, or outstanding Incremental
Loans, in any determination of (1) Required Lenders, as applicable or (2) similar required lender
terms applicable thereto); provided that no amendment or modification shall result in any
increase in the amount of any Lender’s Commitments or any increase in any Lender’s Pro Rata
Share, in each case, without the written consent of such affected Lender. For the avoidance of
doubt, no amendment or amendment and restatement of this Credit Agreement which is in all
other respects approved by the Lenders in accordance with this Section 11.01 shall require the
consent of any Lender (i) which, immediately after giving effect to such amendment or
amendment and restatement, shall have no Commitment and (ii) which, substantially
contemporaneously with the effectiveness of such amendment or amendment and restatement, is
paid in full all amounts owing to it hereunder.
11.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below),
all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly permitted hereunder to
be given by telephone shall be made to the applicable telephone number, as follows:
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(i) if to the Borrowers, the Administrative Agent or the L/C Issuer , to the
address, telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 11.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders
and the L/C Issuer hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the
L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Company may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant
to procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications. Unless the Administrative Agent otherwise prescribes,
(i) notices and other communications sent to an e-mail address shall be deemed received upon
the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement), and
(ii) notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and identifying
the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice,
email or other communication is not sent during the normal business hours of the recipient, such
notice, email or other communication shall be deemed to have been sent at the opening of
business on the next business day for the recipient.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.
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(c) Platform.
(i) Each Loan Party agrees that the Administrative Agent may, but shall not
be obligated to, make the Communications available to the L/C Issuer and the other
Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a
substantially similar electronic transmission system (the “Platform”).
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as
defined below) do not warrant the adequacy of the Platform and expressly disclaim
liability for errors or omissions in the Communications. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third-party rights or
freedom from viruses or other code defects, is made by any Agent Party in connection
with the Communications or the Platform. In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent Parties”) have any liability to any
Loan Party, any Lender or any other Person or entity for damages of any kind, including,
without limitation, direct or indirect, special, incidental or consequential damages, losses
or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the
Administrative Agent’s transmission of communications through the Platform.
(d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent and
the L/C Issuer may change its address, telecopier or telephone number or e-mail address for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Company, the Administrative Agent and the L/C
Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore,
each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender
to at all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including
United States federal and state securities Laws, to make reference to Communications that are
not made available through the “Public Side Information” portion of the Platform and that may
contain material non-public information with respect to any Borrower or its securities for
purposes of United States federal or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices (Notices of Conversion/Continuation)) purportedly given by
or on behalf of any Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof. Subject to the limitations set forth in the proviso in Section 11.05(a), the Company shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each
of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person
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on each notice purportedly given by or on behalf of any Borrower. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.04 Attorney Costs, Expenses and Taxes. The Borrowers jointly and severally
agree (a) to pay or reimburse the Administrative Agent for all reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation, negotiation and execution of
this Agreement and the other Loan Documents and any amendment, waiver, consent or other
modification of the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney Costs and (b) to pay or
reimburse the Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any “workout” or restructuring in respect of the Obligations and during
any legal proceeding, including any proceeding under any Debtor Relief Law), including all
Attorney Costs. The foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent public accountants
and other outside experts retained by the Administrative Agent or any Lender. All amounts due
under this Section 11.04 shall be payable within ten Business Days after demand therefor. The
agreements in this Section shall survive the termination of the Commitments and repayment of
all other Obligations.
11.05 Indemnification by the Borrowers. (a) Whether or not the transactions
contemplated hereby are consummated, the Borrowers shall jointly and severally indemnify and
hold harmless the Administrative Agent, the Arrangers, each Lender and the L/C Issuer, and
each Related Party of any of the foregoing (collectively the “Indemnitees”) from and against any
and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a) the execution,
delivery, enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby, (b) any Commitment,
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (c) any actual or alleged presence or release of Hazardous Materials on or
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from any property currently or formerly owned or operated by the Company, any Subsidiary or
any other Loan Party, or any Environmental Liability related in any way to the Company, any
Subsidiary or any other Loan Party or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory (including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), in all
cases, whether or not caused by or arising, in whole or in part, out of the negligence of the
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements resulted from (x) such Indemnitee’s gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final
and non-appealable decision), (y) a material breach of the obligations under a Loan Document of
such Indemnitee (as determined by a court of competent jurisdiction in a final and non-
appealable decision) or (z) any proceeding brought by an Indemnitee against another Indemnitee
(other than against an Arranger in its capacity as such or the Administrative Agent in its capacity
as such) that does not involve or arise from an act or omission by the Company or its Affiliates.
No Indemnitee shall be liable for any damages arising from the use by others of any information
or other materials obtained through IntraLinks or other similar information transmission systems
in connection with this Agreement, nor shall any Indemnitee have any liability for any indirect,
punitive or consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether before or after the
Effective Date).
(b) Reimbursement by Lenders. To the extent that the Borrowers for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any
such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Pro
Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.
The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.13(d).
(c) All amounts due under this Section 11.05 shall be payable within ten Business
Days after demand therefor. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other Obligations.
11.06 Payments Set Aside. To the extent that any payment by or on behalf of any
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the
Administrative Agent, the L/C Issuer or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared
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to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred and (b) each Lender and
the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the Administrative
Agent or the L/C Issuer, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Overnight Rate from time to time in effect, in
the applicable currency of such recovery or payment. The obligations of the Lenders and the
L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
11.07 Successors and Assigns.
(a) Successors and Assigns Generally. 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, except that no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this
Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this
Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of
paragraph (f) of this Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). 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, Participants to the extent provided in paragraph (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
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); provided that any such
assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
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principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date) shall
not be less than $5,000,000, unless each of the Administrative Agent and, so long
as no Default or Event of Default has occurred and is continuing, the Company
otherwise consents (each such consent not to be unreasonably withheld or
delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loan or the Commitment assigned;
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:
(A) the consent of the Company (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) the Revolving Credit Facility if such assignment is to a Person that is not a
Lender with a Revolving Credit Commitment, an Affiliate of such Lender or an
Approved Fund with respect to such Lender or (ii) the Term Loan Facility to a
Person who is not a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) the consent of the L/C Issuer (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of the Revolving
Credit Facility.
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500 for each assignment; provided that (A)
only one such fee will be payable in connection with simultaneous assignments to two or
more Approved Funds by a Lender and (B) the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to
(A) the Company or any of the Company’s Subsidiaries or Affiliates or (B) to any
Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this clause (B).
(vi) No Assignment to Natural Persons. No such assignment shall be made to
a natural person.
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(vii) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set forth herein, the
parties to the assignment shall make such additional payments to the Administrative
Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the consent of
the Company and the Administrative Agent, the applicable pro rata share of Loans
previously requested, but not funded by, the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in
full all payment liabilities then owed by such Defaulting Lender to the Administrative
Agent, the L/C Issuer and each other Lender hereunder (and interest accrued thereon),
and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit in accordance with its Pro Rata Share. Notwithstanding
the foregoing, in the event that any assignment of rights and obligations of any
Defaulting Lender hereunder shall become effective under applicable Law without
compliance with the provisions of this paragraph, then the assignee of such interest shall
be deemed to be a Defaulting Lender for all purposes of this Agreement until such
compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.03, 3.04, 11.04 and
11.05 with respect to facts and circumstances occurring prior to the effective date of such
assignment; provided, that except to the extent otherwise expressly agreed by the affected
parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of
any party hereunder arising from that Lender’s having been a Defaulting Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with paragraph (d) of this
Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-
fiduciary agent of the Borrowers, shall maintain at the Administrative Agent’s office or, in the
case of ▇▇▇▇▇ Fargo, any of its offices in Charlotte, North Carolina, a copy of each Assignment
and Assumption and each Lender Joinder Agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of, and principal
amounts of (and stated interest on) the Loans owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be conclusive, absent
manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
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hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by any Borrower and any Lender (but only to the extent
of entries in the Register that are applicable to such Lender), at any reasonable time and from
time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Company, the Administrative Agent, L/C Issuer 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. For the avoidance of doubt, each Lender shall be responsible
for the indemnity under Section 11.05 with respect to any payments made by such Lender to its
Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver or modification described in
Section 11.01 that directly affects such Participant and could not be effected by a vote of the
Required Lenders. Each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.03 and 3.04 (subject to the requirements and limitations therein, including the
requirements of Section 3.01(f) (it being understood that the documentation required under
Section 3.01(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 pursuant to paragraph (b) of this Section;
provided that such Participant (A) agrees to be subject to the provisions of Section 11.15 as if it
were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any
greater payment under Sections 3.01 and 3.03, with respect to such 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 Company’s
request and expense, to use reasonable efforts to cooperate with the Company to effectuate the
provisions of Section 11.15 with respect to any Participant. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.09 as though it were a Lender;
provided that such Participant agrees to be subject to Section 2.14 as though it were a Lender.
(e) Participant Register. Each Lender that sells a participation shall, acting solely for
this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the
name and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under the Loan Documents (the
“Participant Register”); provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register (including the identity of any Participant or any information
relating to a Participant’s interest in any commitments, loans, letters of credit or its other
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obligations under any Loan Document) to any Person except to the extent that such disclosure is
necessary to establish that such commitment, loan, letter of credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary. For
the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall
have no responsibility for maintaining a Participant Register.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
11.08 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and representatives (it being understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (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 hereto, (e) if
necessary in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as 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 advisors) to any swap or
derivative transaction relating to a Borrower and its obligations, (g) with the consent of the
Company or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, any
Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Company. For purposes of this Section, “Information” means all
information received from any Loan Party relating to any Loan Party or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party,
provided that, in the case of information received from any Loan Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. 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.
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11.09 Set-off. In addition to any right or remedy of the Lenders provided by law, if an
Event of Default exists, each Lender is authorized at any time and from time to time, without
prior notice to any Borrower or any other Loan Party, any such notice being waived by each
Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the respective Loan Parties against any and all Obligations owing to such
Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable deposit or
indebtedness. Each Lender agrees promptly to notify the Company and the Administrative
Agent after any such set-off and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such set-off and application.
11.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or,
if it exceeds such unpaid principal, refunded to the applicable Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof and (c) amortize, prorate, allocate and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 Counterparts; Effectiveness. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy (or other electronic transmission) shall be effective as
delivery of a manually executed counterpart of this Agreement.
11.12 Integration. This Agreement, together with the other Loan Documents,
constitutes the complete and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event
of any conflict between the provisions of this Agreement and those of any other Loan Document,
the provisions of this Agreement shall control; provided that the inclusion of supplemental rights
or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.
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11.13 Survival of Representations and Warranties. All representations and
warranties made hereunder and in each other Loan Document or other document delivered
pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and
delivery hereof and thereof. Such representations and warranties have been or will be relied
upon by the Administrative Agent and each Lender, regardless of any investigation made by the
Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the
time of any Credit Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
11.14 Severability. If any provision of this Agreement or any other Loan Document is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
11.15 Replacement of Lenders. If (a) any Lender requests compensation under
Section 3.03, (b) any Lender’s obligation to make, fund or maintain LIBOR Rate Loans is
suspended under Section 3.02, (c) any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
(d) any Lender fails to consent to any amendment, waiver or other modification to this
Agreement or any other Loan Document requested pursuant to Section 11.01 (so long as such
amendment, waiver or other modification has been consented to by the Required Lenders), (e)
any Lender is a Defaulting Lender or (f) any other circumstance exists hereunder that gives the
Company the right to replace a Lender as a party hereto, then the Company 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, and consents required by, Section 10.06), all of its interests, rights
(other than its rights to payments pursuant to Section 3.01, 3.02 and 3.03) and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:
(a) the Company shall have paid (or caused a Borrowing Subsidiary to pay) to the
Administrative Agent the assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts
under Section 3.04) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company or applicable Borrowing Subsidiary (in the case of all other
amounts);
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(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.03 or payments required to be made pursuant to Section 3.01, such assignment will
result in a reduction in such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.
11.16 Automatic Debits of Fees. With respect to any interest, facility fee, letter of
credit fee or other fee due and payable to the Administrative Agent, the L/C Issuer, or any
Arranger under the Loan Documents, each Borrower hereby irrevocably authorizes ▇▇▇▇▇ Fargo
to debit any deposit account of such Borrower with ▇▇▇▇▇ Fargo in an amount such that the
aggregate amount debited from all such deposit accounts does not exceed such fee or other cost
or expense. If there are insufficient funds in such deposit accounts to cover the amount of the
interest or fees then due, such debits will be reversed (in whole or in part, in ▇▇▇▇▇ Fargo’s sole
discretion) and such amount not debited shall be deemed to be unpaid. ▇▇▇▇▇ Fargo agrees to use
commercially reasonable efforts to notify the Company prior to any such debit. No such debit
under this Section shall be deemed a set-off.
11.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ SITTING IN THE BOROUGH OF
MANHATTAN IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE
SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE COMPANY, EACH BORROWING SUBSIDIARY, THE
ADMINISTRATIVE AGENT, THE L/C ISSUER AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE COMPANY, EACH BORROWING
SUBSIDIARY, THE ADMINISTRATIVE AGENT, THE L/C ISSUER AND EACH LENDER
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT
OR OTHER DOCUMENT RELATED THERETO. THE COMPANY, EACH BORROWING
SUBSIDIARY, THE ADMINISTRATIVE AGENT, THE L/C ISSUER AND EACH LENDER
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
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PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE
LAW OF SUCH STATE.
(c) Waiver of Right to Trial by Jury. 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 PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT 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.
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11.18 No Advisory or Fiduciary Responsibility. In connection with all aspects of the
transactions contemplated by this Agreement (including in connection with any amendment,
waiver or other modification hereof), the Borrowers acknowledge and agree that (a) the
arranging and other services provided by the Arrangers and the Administrative Agent are arm’s-
length commercial transactions between the Borrowers, on the one hand, and the Arrangers and
the Administrative Agent, on the other hand; (b) the Borrowers have consulted their own legal,
accounting, regulatory and tax advisors to the extent they have deemed appropriate; (c) the
Borrowers are capable of evaluating, and understand and accept, the terms, risks and conditions
of the transactions contemplated hereby; (d) the Arrangers and the Administrative Agent are and
have been acting solely as principals and, except as expressly agreed in writing by the relevant
parties, have not been, are not, and will not be acting as advisors, agents or fiduciaries for the
Company or any of its Affiliates; (e) neither the Arrangers nor the Administrative Agent has any
obligation to any Borrower with respect to the transactions contemplated hereby except those
obligations expressly set forth herein; and (f) the Arrangers, the Administrative Agent and their
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrowers and their Affiliates, and neither the Arrangers nor the Administrative
Agent has any obligation to disclose any of such interests to any Borrower. To the fullest extent
permitted by law, the Borrowers waive and release any claim that they may have against the
Arrangers or the Administrative Agent with respect to any breach or alleged breach of agency or
fiduciary duty in connection with this Agreement or any aspect of the transactions contemplated
hereby.
11.19 USA PATRIOT Act Notice. Each Lender that is subject to the PATRIOT Act
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Loan Parties that pursuant to the requirements of the PATRIOT Act, it is required to obtain,
verify and record information that identifies the Loan Parties, which information includes the
name and address of each Loan Party and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Loan Party in accordance with the
PATRIOT Act.
11.20 Judgment Currency. If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation
of any Loan Party in respect of any such sum due from it to the Administrative Agent hereunder
or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent in the Agreement Currency, the Company and each Borrowing Subsidiary
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally due to the
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Administrative Agent in such currency, the Administrative Agent agrees to return the amount of
any excess to the Company or the applicable Borrowing Subsidiary (or to any other Person who
may be entitled thereto under applicable Law).
11.21 Acknowledgement 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
Document, to the extent such liability is unsecured, may be subject to the write-down and
conversion powers of an 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 Institution, its parent undertaking, or a
bridge institution that may be issued to it or otherwise conferred on it, and that such
shares or other instruments of ownership will be accepted by it in lieu of any rights with
respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise
of the write-down and conversion powers of any EEA Resolution Authority.
11.22 Waiver of Prepayment Notice under Existing Credit Agreement. The
Lenders that are parties to the Existing Credit Agreement (which constitute the “Required
Lenders” thereunder) hereby waive any notice of prepayment of “Loans” or termination of
“Commitments” under the Existing Credit Agreement otherwise required by Section 2.06(a) or
2.07 thereof. Such Lenders and the Borrower agree that such Commitments shall automatically
terminate concurrently with the effectiveness hereof pursuant to Section 4.01 hereof.
11.23 Release of Donaldson Capital as a Guarantor under Existing Credit
Agreement. The “Lenders” (as defined in the Existing Credit Agreement) (and, by its
acknowledgment hereof, Donaldson Capital, Inc.), hereby agree that upon the effectiveness
hereof Donaldson Capital, Inc. shall cease to be a “Guarantor” under (and as defined in) the
Guaranty (as such term is defined in the Existing Credit Agreement), and Donaldson Capital,
Inc. shall have no further rights or obligations under the Existing Credit Agreement, the
Guaranty, or the other Loan Documents (as defined in the Existing Credit Agreement).
[Signature pages to follow]
Signature Page to Credit Agreement
4826-5029-7676\4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
▇▇▇▇▇▇▇▇▇ COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
Signature Page to Credit Agreement
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Acknowledged and agreed with respect to
Section 11.23 above as of the date hereof
DONALDSON CAPITAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
Signature Page to Credit Agreement
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▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent, L/C
Issuer and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
Signature Page to Credit Agreement
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U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Credit Agreement
4826-5029-7676\4
Bank of the West, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Signature Page to Credit Agreement
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JPMorgan Chase Bank, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
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BRANCH BANKING AND TRUST
COMPANY, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Credit Agreement
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THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
Signature Page to Credit Agreement
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Mizuho Bank (USA), as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
Signature Page to Credit Agreement
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KBC BANK N.V., as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. Silver
Name: ▇▇▇▇▇ ▇. Silver
Title: Managing Director
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SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender Revolving Credit
Commitment
Revolving Credit
Commitment
Pro Rata Share
Term Loan
Commitment
Term Loan
Commitment
Pro Rata Share
▇▇▇▇▇ Fargo Bank, National Association $81,818,181.82 16.363636364% $8,181,818.18 16.363636360%
U.S. Bank National Association $81,818,181.82 16.363636364% $8,181,818.18 16.363636360%
Bank of the West $68,181,818.18 13.636363636% $6,818,181.82 13.636363640%
JPMorgan Chase Bank, N.A. $68,181,818.18 13.636363636% $6,818,181.82 13.636363640%
Branch Banking and Trust Company $50,000,000.00 10.000000000% $5,000,000.00 10.000000000%
The Bank of Tokyo-Mitsubishi UFJ, Ltd. $50,000,000.00 10.000000000% $5,000,000.00 10.000000000%
Mizuho Bank (USA) $50,000,000.00 10.000000000% $5,000,000.00 10.000000000%
KBC Bank N.V., New York Branch $50,000,000.00 10.000000000% $5,000,000.00 10.000000000%
Total $500,000,000 100.00% $50,000,000 100.00%
4826-5029-7676\4
SCHEDULE 5.10
SUBSIDIARIES AND OWNERSHIP
OF SUBSIDIARY STOCK
(i) Company Subsidiaries
* Unless otherwise note, all listed subsidiaries are owned 100% by ▇▇▇▇▇▇▇▇▇ Company, Inc., or
a Subsidiary of ▇▇▇▇▇▇▇▇▇ Company, Inc. Indentations indicate level of ownership.
ASHC, LLC (U.S.A.)
Prestadora de Servicios Aguascalientes, S. de ▇.▇. de C.V. (Mexico)
Aerospace Filtration Systems, Inc. (U.S.A.)
Hy-Pro Corporation (U.S.A.)
Donaldson do Brasil Equipamentos Industriais Ltda (Brazil)
▇▇▇▇▇▇▇▇▇, ▇.▇. de C.V. (Mexico)
Filtros Partmo S.A.S
Donaldson Capital, Inc. (U.S.A)
Donaldson Colombia S.A.S (Colombia)
Donaldson Chile, Ltd. (Chile)
Donaldson Peru SAC (Peru)
Donaldson Canada, Inc. (Canada)
▇▇▇▇▇▇▇▇▇ Filtration (Thailand) Ltd. (Thailand)
▇▇▇▇▇▇▇▇▇ Filtration (Philippines) Inc. (Philippines)
Donaldson India Filter Systems Pvt. Ltd. (India)
DLX Capital S.a.r.l. (Luxembourg)
DLX USD FIN Co S.a.r.l. (Luxembourg)
Donaldson Overseas Holding S.a.r.l. (Luxembourg)
Nippon Donaldson Ltd. (Japan)
▇▇▇▇▇▇▇▇▇ Filtration (Malaysia) Sdn. Bhd. (Malaysia)
Donaldson Korea Co., Ltd. (South Korea)
Donaldson Australasia Pty. Ltd. (Australia)
▇▇▇▇▇▇▇▇▇ Filtration (Asia Pacific) Pte. Ltd. (Singapore)
P.T. ▇▇▇▇▇▇▇▇▇ Filtration Indonesia (Indonesia)
Donaldson Luxembourg S.a.r.l (Luxembourg)
Donaldson Ibèrica Soluciones en Filtración, S.L. (Spain)
Donaldson Schweiz GmbH (Switzerland)
Donaldson Polska Sp. z.o.o. (Poland)
Donaldson Filtre Sistemleri Ticaret Limited Sirketi (Turkey)
▇▇▇▇▇▇▇▇▇ Filtration Österreich, GmbH (Austria)
Donaldson Europe, b.v.b.a. (Belgium)
Donaldson Belgie, b.v.b.a. (Belgium)
4826-5029-7676\4
Northern Technical L.L.C. (United Arab Emirates)
▇▇▇▇▇▇▇▇▇ Filtration Systems (Pty) Ltd. (South Africa)
▇▇▇▇▇▇▇▇▇ Filtration Sub Saharan Africa (Pty) Ltd (South Africa)
Donaldson Education Investment Company RF (Pty) Ltd (South Africa)
▇▇▇▇▇▇▇▇▇ Filtration Deutschland GmbH (Germany)
▇▇▇▇▇▇▇▇▇ Filtration Magyarorszag Kft. (Hungary)
▇▇▇▇▇▇▇▇▇ Filtration Slovensko s.r.o. (Slovakia)
▇▇▇▇▇▇▇▇▇ Filtration Norway a.s. (Norway)
Donaldson Italia s.r.l. (Italy)
Donaldson Nederland B.V. (Netherlands)
Donaldson Scandinavia a.p.s. (Denmark)
▇▇▇▇▇▇▇▇▇ Filtration CR - Konzern s.r.o. (Czech Republic)
Donaldson Industrial CR - Konzern s.r.o. (Czech Republic)
Donaldson Czech Republic s.r.o. (Czech Republic)
Donaldson France, s.a.s. (France)
Ultrafilter s.a.s. (France)
Donaldson, s.a.s. (France)
Le Bozec Filtration et Systèmes, s.a.s. (France)
Donaldson UK Holding Ltd. (United Kingdom)
▇▇▇▇▇▇▇▇▇ Filtration (GB) Ltd. (United Kingdom)
▇▇▇▇▇▇▇▇▇ Filter Components Ltd. (United Kingdom)
DCE Group Ltd. (United Kingdon)
Ultrafilter Ltd. (United Kingdon)
DFCH Ltd. (United Kingdom)
DCE Ltd. (United Kingdom)
DF(GB) Ltd. (United Kingdom)
Tetratec Europe Ltd. (United Kingdom)
DCE Donaldson Ltd. (United Kingdom)
Donaldson Taiwan Ltd. (Taiwan)
Donaldson Far East Ltd. (Hong Kong)
Donaldson (China) Holding Co., Ltd. (China)
Donaldson (China) Trading Co., Ltd. (China)
Donaldson (Wuxi) Filters Co., Ltd. (China)
Donaldson (Xuzhou) Filters Co. Ltd. (China)
Donaldson (Thailand) Ltd. (Thailand)
ii) Joint venture Subsidiaries
IFIL.USA, L.L.C. – 70%
4826-5029-7676\4
SCHEDULE 7.01
EXISTING LIENS*
Various capitalized leases in the U.S. $ 1,243,231
*as of Q3 FY17 – 04/30/17
4826-5029-7676\4
SCHEDULE 7.03
EXISTING INVESTMENTS*
Investment in Advanced Filtration Systems Inc. $ 8,557,000
Investment in PT Panata Jaya Mandiri $ 5,847,303
Investment in ▇▇▇▇▇▇ ▇▇-▇▇▇▇▇▇ & Sons-Donaldson Ltd. $ 3,950,313
Investment in Applied Membrane Technology Inc. $ 225,094
*as of Q3 FY17 - 04/30/17
4826-5029-7676\4
SCHEDULE 11.02
ADMINISTRATIVE AGENT’S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
COMPANY (AND EACH OTHER BORROWER):
▇▇▇▇▇▇▇▇▇ Company, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Website Address: ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇ Company, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
ADMINISTRATIVE AGENT:
Administrative Agent’s Office
(for payments and Requests for Credit Extensions):
▇▇▇▇▇ Fargo Bank, National Association
Attention: Agency Services
▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
L/C ISSUER:
▇▇▇▇▇ Fargo Bank, National Association
Attention: Agency Services
▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
4826-5029-7676\4
EXHIBIT A
FORM OF
BORROWING NOTICE
Date: ___________, 20__
To: ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
The undersigned, [name of Borrower] (the “Borrower”), refers to the Credit Agreement
dated as of July 21, 2017 (as amended or otherwise modified from time to time, the “Credit
Agreement”) among ▇▇▇▇▇▇▇▇▇ Company, Inc., various subsidiaries thereof, various financial
institutions and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent. Terms used
but not otherwise defined herein are used herein as defined in the Credit Agreement. The
Borrower hereby irrevocably gives you notice pursuant to Section 2.02 of the Credit Agreement
of the Borrowing specified herein:
1. The date of the proposed Borrowing is ___________, 20___.
2. The Borrowing shall consist of [Revolving Credit Loans] [a Term Loan].
3. The aggregate principal amount of the proposed Borrowing is a Dollar Equivalent of
$_____________.
4. The Type of the Loans shall be ______.
[5. The Applicable Currency for the Loans shall be _______.]1
6. [Include For LIBOR Rate Loans: The duration of the Interest Period for the requested
LIBOR Rate Loans shall be ____ months.]
7. [For the sake of avoidance of doubt, the principal amount of individual Revolving
Credit Loans under the Agreement are not contractually due and payable (absent an
Event of Default) until the Revolving Maturity Date as set forth in the Agreement.]2
The Borrowing requested herein complies with [the proviso to the first sentence of
Section 2.01(a)] [the second sentence of Section 2.01(b)] of the Credit Agreement.
[BORROWER]
By:
Name:
Title:
1 Applicable solely to Revolving Credit Loans
2 Applicable solely to Revolving Credit Loans
4826-5029-7676\4
EXHIBIT B
FORM OF
NOTICE OF CONVERSION/CONTINUATION
Date: ___________, 20___
To: ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
The undersigned, [Name of Borrower][▇▇▇▇▇▇▇▇▇ Company, Inc.] (the “Borrower”),
refers to the Credit Agreement dated as of July 21, 2017 (as amended or otherwise modified
from time to time, the “Credit Agreement”) among ▇▇▇▇▇▇▇▇▇ Company, Inc., [the Borrower],
various subsidiaries thereof, various financial institutions and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent. Terms used but not otherwise defined herein are used
herein as defined in the Credit Agreement. The Borrower hereby irrevocably gives you notice
pursuant to Section 2.03 of the Credit Agreement of the [conversion/continuation] of the Loans
specified herein:
1. The Loan to which this notice relates is a [Revolving Credit Loan][Term Loan].
2. The Conversion/Continuation Date is _______________, 20___.
3. The aggregate amount of Loans to be [converted/continued] is a Dollar
Equivalent of $____________.
4. [The Applicable Currency for the Offshore Rate Loans to be
[converted/continued] is _______.]3
5. Such Loans are to be [converted into] [continued as][Base Rate][LIBOR Rate]
Loans.
6. [If applicable:] The duration of the Interest Period for the LIBOR Rate Loans to
be [converted into] [continued] shall be ________ months.
7. [For the sake of avoidance of doubt, the principal amount of individual Revolving
Credit Loans under the Agreement are not contractually due and payable (absent
an Event of Default) until the Revolving Maturity Date as set forth in the
Agreement.]4
[BORROWER][▇▇▇▇▇▇▇▇▇ COMPANY, INC.]
By:
Name:
Title:
3 Only applicable for Revolving Credit Loans
4 Only applicable for Revolving Credit Loans
4826-5029-7676\4
EXHIBIT C-1
FORM OF REVOLVING CREDIT NOTE
FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan
from time to time made by the Lender to the Borrower under the Credit Agreement, dated as of
July 21, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among ▇▇▇▇▇▇▇▇▇ Company, Inc., various Borrowing Subsidiaries, the Lenders from
time to time party thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent
and L/C Issuer.
The Borrower promises to pay interest on the unpaid principal amount of each Revolving
Credit Loan from the date of such Revolving Credit Loan until such principal amount is paid in
full, at such interest rates and at such times as are specified in the Agreement. All payments of
principal and interest shall be made to the Administrative Agent for the account of the Lender in
Dollars in Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in
full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.
This Revolving Credit Note is one of the Revolving Credit Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to
the terms and conditions provided therein. This Revolving Credit Note is also entitled to the
benefits of certain guaranties. Upon the occurrence and continuation of one or more of the
Events of Default specified in the Agreement, all amounts then remaining unpaid on this
Revolving Credit Note shall become, or may be declared to be, immediately due and payable, all
as provided in the Agreement. Revolving Credit Loans made by the Lender shall be evidenced
by one or more loan accounts or records maintained by the Lender in the ordinary course of
business. The Lender may also attach schedules to this Revolving Credit Note and endorse
thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect
thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-payment of
this Revolving Credit Note.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE.
[NAME OF BORROWER]
By:
Name:
Title: _______________________________
4826-5029-7676\4
LOANS AND PAYMENTS WITH RESPECT THERETO
Date
Type of Loan
Made
Applicable
Currency and
Amount of
Loan Made
End of
Interest
Period
Amount of
Principal or
Interest Paid
This Date
Outstanding
Principal
Balance This
Date
Notation
Made By
4826-5029-7676\4
EXHIBIT C-2
FORM OF TERM LOAN NOTE
FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Term Loan from time to
time made by the Lender to the Borrower under the Credit Agreement, dated as of July 21, 2017
(as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein defined), among
▇▇▇▇▇▇▇▇▇ Company, Inc., various Borrowing Subsidiaries, the Lenders from time to time party
thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent and L/C Issuer.
The Borrower promises to pay interest on the unpaid principal amount of each Term
Loan from the date of such Term Loan until such principal amount is paid in full, at such interest
rates and at such times as are specified in the Agreement. All payments of principal and interest
shall be made to the Administrative Agent for the account of the Lender in Dollars in Same Day
Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Agreement.
This Term Loan Note is one of the Term Loan Notes referred to in the Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This Term Loan Note is also entitled to the benefits of certain
guaranties. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Term Loan Note shall
become, or may be declared to be, immediately due and payable, all as provided in the
Agreement. Term Loans made by the Lender shall be evidenced by one or more loan accounts
or records maintained by the Lender in the ordinary course of business. The Lender may also
attach schedules to this Term Loan Note and endorse thereon the date, amount and maturity of its
Term Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-payment of
this Term Loan Note.
THIS TERM LOAN NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
▇▇▇▇▇▇▇▇▇ COMPANY, INC.
By:
Name:
Title:
4826-5029-7676\4
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ____________ __, 20___
To: ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of July 21, 2017 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among ▇▇▇▇▇▇▇▇▇
Company, Inc., a Delaware corporation (the “Company”), various subsidiaries thereof, the
Lenders from time to time party thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent and L/C Issuer.
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is
the of the Company, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the
Company, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Company ended as of the
above date, together with the report and opinion of an independent certified public accountant
required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the above
date. Such financial statements fairly present the financial condition, results of operations and
cash flows of the Company and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Agreement
and has made, or has caused to be made under his/her supervision, a detailed review of the
transactions and condition (financial or otherwise) of the Company during the accounting period
covered by the attached financial statements.
3. A review of the activities of the Company during such fiscal period has been
made under the supervision of the undersigned with a view to determining whether during such
fiscal period the Company performed and observed all its Obligations under the Loan
Documents, and
[select one:]
4826-5029-7676\4
[to the best knowledge of the undersigned during such fiscal period, no Default
exists and is continuing.]
--or--
[the following is a list of each such Default and its nature and status:]
4. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of , 20___.
▇▇▇▇▇▇▇▇▇ COMPANY, INC.
By:
Name:
Title:
For the Quarter/Year ended ___________________, 20___(“Statement Date”)
4826-5029-7676\4
SCHEDULE 2
to the Compliance Certificate
($ in 000’s)
I. Section 7.05(a) – Consolidated Interest Coverage Ratio.
A. Consolidated EBITDA for four consecutive fiscal quarters ending on or
immediately prior to such date (“Subject Period”):
1. Consolidated Net Income for Subject Period: $
2. Consolidated Interest Charges for Subject Period: $
3. Provision for income taxes for Subject Period: $
4. Depreciation expenses for Subject Period: $
5. Amortization expenses for intangibles for Subject Period: $
6. Non-cash stock compensation expenses for Subject Period: $
7. Other non-cash charges: $
8. (Non-cash gains): $
9. Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 + 7 - 8): $
B. Consolidated Interest Charges for Subject Period: $
C. Consolidated Interest Coverage Ratio (Line I.A.9 ÷ Line I.B): to 1.0
Minimum required: 3.5:1.0
II. Section 7.05(b) – Leverage Ratio.
A. Total Indebtedness at Financial Statement Date: $
B. Consolidated EBITDA for Subject Period (Line I.A.9 above): $
C. Leverage Ratio (Ratio of Line II.A to Line II.B): to 1.0
Maximum permitted: 3.50:1.00 (or solely during a Leverage Holiday 4.00:1.00).
III. Section 7.09 – Priority Debt.
A. Priority Debt:
1. Unsecured Indebtedness of Subsidiaries on such date: $
2. Indebtedness of the Company and its Subsidiaries secured by Liens
permitted by Section 7.01(o): $
3. Priority Debt (Lines III.A.1 + 2): $
B. Consolidated Net Worth: $
C. Percentage of Consolidated Net Worth: %
Maximum permitted: 20% of Consolidated of Net Worth.
4826-5029-7676\4
EXHIBIT E
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 [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). 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 1 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 and the Credit Agreement,
as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the
Assignor’s rights and obligations 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, without limitation, Letters of
Credit included in such facilities) and (ii) 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, but not limited to, 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 (i) above (the rights and obligations sold and assigned pursuant to clauses (i)
and (ii) 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 an Affiliate/Approved Fund
of [identify Lender]5]
3. Borrower(s): ▇▇▇▇▇▇▇▇▇ Company, Inc.
4. Administrative Agent: ▇▇▇▇▇ Fargo Bank, National Association, as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of July 21, 2017 among ▇▇▇▇▇▇▇▇▇
Company, Inc., various subsidiaries thereof, the Lenders parties thereto, and ▇▇▇▇▇ Fargo
Bank, National Association, as Administrative Agent and L/C Issuer.
5 Select as applicable.
4826-5029-7676\4
6. Assigned Interest:6
Facility Assigned7
Aggregate
Amount of
Commitment
for all Lenders
Amount of
Commitment
Assigned
Percentage
Assigned of
Commitment8 CUSIP Number
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
[7. Trade Date: __________________]9
Effective Date: __________________, 20___ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Name:
Title:
6 Amount to be adjusted by the counterparties to take into account any payments or
prepayments made between the Trade Date and the Effective Date.
7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement
that are being assigned under this Assignment (e.g. “Revolving Credit Commitment”, “Term
Loan Commitment”, etc.).
8 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.
9 To be completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade Date.
4826-5029-7676\4
[Consented to and]10 Accepted:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent
By: _________________________________
Title:
[Consented to:]11
▇▇▇▇▇▇▇▇▇ COMPANY, INC.
By: _________________________________
Title:
10 To be added only if the consent of the Administrative Agent is required by the terms of
the Credit Agreement.
11 To be added only if the consent of the Company and/or other parties (e.g. L/C Issuer) is
required by the terms of the Credit Agreement.
4826-5029-7676\4
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________]
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
(a) 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, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
(b) 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 and to consummate the transactions contemplated hereby and to become a Lender
under the Credit Agreement, (ii) it meets all requirements of an assignee under the Credit
Agreement (subject to receipt of such consents as may be required under the Credit Agreement),
(iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and the other Loan Documents as a Lender thereunder and, to the extent of the
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the type represented by the Assigned Interest and either
it, or the Person exercising discretion in making its decisions to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 6.01
thereof, as applicable, 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 or any other Lender, 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, 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.
4826-5029-7676\4
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 Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.
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, which together
shall constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy or other electronic transmission 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 law of
the State of New York.
4826-5029-7676\4
EXHIBIT G-1
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 July 21, 2017 (as
amended or otherwise modified from time to time, the “Credit Agreement”) among ▇▇▇▇▇▇▇▇▇
Company, Inc. (the “Company”), various subsidiaries thereof, various financial institutions and
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.01 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 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 ten
percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code
and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section
881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company with a
certificate of its non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, 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 Company and the
Administrative Agent, and (2) the undersigned shall have at all times furnished the Company 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___
4826-5029-7676\4
EXHIBIT G-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Credit Agreement dated as of July 21, 2017 (as
amended or otherwise modified from time to time, the “Credit Agreement”) among ▇▇▇▇▇▇▇▇▇
Company, Inc. (the “Company”), various subsidiaries thereof, various financial institutions and
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.01 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 ten percent shareholder of any Borrower within
the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign
corporation related to any 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-E (or W-8BEN, 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___
4826-5029-7676\4
EXHIBIT G-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of July 21, 2017 (as
amended or otherwise modified from time to time, the “Credit Agreement”) among ▇▇▇▇▇▇▇▇▇
Company, Inc. (the “Company”), various subsidiaries thereof, various financial institutions and
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.01 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 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 ten percent shareholder of any 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 any 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-E (or W-8BEN, as applicable) or (ii)
an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, 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___
4826-5029-7676\4
EXHIBIT G-4
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 July 21, 2017 (as
amended or otherwise modified from time to time, the “Credit Agreement”) among ▇▇▇▇▇▇▇▇▇
Company, Inc. (the “Company”), various subsidiaries thereof, various financial institutions and
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.01 of the Credit Agreement, the
undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any
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
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 ten percent shareholder of any
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 any Borrower as
described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company 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-E
(or W-8BEN, as applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-
8BEN-E (or W-8BEN, 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 Company and the Administrative Agent, and (2) the undersigned shall
have at all times furnished the Company 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___
4826-5029-7676\4
EXHIBIT H-1
FORM OF
BORROWING SUBSIDIARY AGREEMENT
Date: ___________, 20___
To: ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇▇▇▇ Company, Inc. (the “Company”), refers to the Credit
Agreement dated as of July 21, 2017 (as it may be amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”) among the Company, the Borrowing
Subsidiaries from time to time party thereto, the financial institutions from time to time party
thereto and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent. Capitalized terms
used and not otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
Pursuant to Section 2.15 of the Credit Agreement, the Company hereby designates [Name
of Borrowing Subsidiary] (the “Designated Borrowing Subsidiary”) as a Borrowing Subsidiary.
The Company and the Designated Borrowing Subsidiary make, on and as of the date hereof, the
representations and warranties as to the Designated Borrowing Subsidiary contained in Article V
of the Credit Agreement. The Designated Borrowing Subsidiary agrees to be bound in all
respects by the terms of the Credit Agreement and to perform all of the obligations of a
Borrowing Subsidiary thereunder. Each reference to a Borrowing Subsidiary in the Credit
Agreement shall be deemed to include the Designated Borrowing Subsidiary.
All communications to the Designated Borrowing Subsidiary under the Credit Agreement
should be directed to the Company as set forth in Section 11.02 of the Credit Agreement.
The Designated Borrowing Subsidiary hereby agrees to provide the Revolving Credit
Lenders with any additional information reasonably requested that will allow such Revolving Credit
Lender to identify the Designated Borrowing Subsidiary in accordance with the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)).
This Borrowing Subsidiary Agreement shall be construed in accordance with and
governed by the laws of the State of New York. Loan proceeds should be disbursed as provided
in the Credit Agreement.
Upon the execution of this Borrowing Subsidiary Agreement by the Company and the
Designated Borrowing Subsidiary, and acceptance hereof by the Administrative Agent, the
Designated Borrowing Subsidiary shall become a Borrowing Subsidiary under the Credit
Agreement as though it were an original party thereto and shall be entitled to borrow under the
Credit Agreement upon the satisfaction of the conditions precedent set forth in Sections 4.02 and,
if applicable, 4.03 of the Credit Agreement.
4826-5029-7676\4
Very truly yours,
▇▇▇▇▇▇▇▇▇ COMPANY, INC.
By:___________________________
Name:
Title:
[DESIGNATED BORROWING
SUBSIDIARY]
By:___________________________
Name:
Title:
Accepted [and consented to]12 as of the date first above written:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:______________________________
Name:
Title:
[[LENDER], as a Revolving Credit Lender
By:______________________________
Name:
Title:]
12 To be added only if the consent of the Administrative Agent and the Revolving Credit Lenders is required by the
terms of the Credit Agreement.
4826-5029-7676\4
EXHIBIT H-2
FORM OF
BORROWING SUBSIDIARY TERMINATION
Date: ___________, 20___
To: ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇▇ Company, Inc. (the “Company”), refers to the Credit Agreement dated as of
July 21, 2017 (as it may be amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among the Company, the Borrowing Subsidiaries from time to time party
thereto, the financial institutions from time to time party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.15 of the Credit Agreement, the Company hereby elects to
terminate the status of [Name of Borrowing Subsidiary] (the “Terminated Borrowing
Subsidiary”) as a Borrowing Subsidiary for purposes of the Credit Agreement. The Company
represents and warrants that no Revolving Credit Loans or Letters of Credit made to or issued for
the account of the Terminated Borrowing Subsidiary are outstanding as of the date hereof and
that all principal and interest on all Revolving Credit Loans, all reimbursement obligations with
respect to Letters of Credit and all other Obligations to be paid or performed by the Terminated
Borrowing Subsidiary pursuant to the Credit Agreement have been paid or performed in full on
or prior to the date hereof. In the event the foregoing representation and warranty shall be untrue
or inaccurate in any respect for any reason whatsoever, the Company acknowledges and
confirms that it remains fully liable with respect to the Obligations of the Terminated Borrowing
Subsidiary pursuant to the Company’s Guarantee set forth in Article X of the Credit Agreement.
This Borrowing Subsidiary Termination shall be construed in accordance with and
governed by the laws of the State of New York.
Very truly yours,
▇▇▇▇▇▇▇▇▇ COMPANY, INC.
By:___________________________
Name:
Title: