CREDIT AGREEMENT AMONG INTERMEX HOLDINGS II, INC. as Holdings INTERMEX HOLDINGS, INC., INTERMEX WIRE TRANSFER, LLC, as Borrowers, THE LENDERS FROM TIME TO TIME PARTY HERETO, MC ADMIN CO LLC, as ADMINISTRATIVE AGENT AND COLLATERAL AGENT

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SECTION 1.		Definitions and Accounting Terms	1
1.01		Defined Terms	1
SECTION 2.		Amount and Terms of Loans	37
2.01		The Loans	37
2.02		Minimum Amount of Each Borrowing and Maximum number of Borrowings	38
2.03		Notice of Borrowing	39
2.04		Disbursement of Funds	39
2.05		Notes	40
2.06		Conversions	41
2.07		Pro Rata Borrowings	41
2.08		Interest	41
2.09		Interest Periods	42
2.10		Increased Costs, Illegality, etc	43
2.11		Compensation	45
2.12		Change of Lending Office	45
2.13		Replacement of Lenders	45
SECTION 3.		Reserved	46
SECTION 4.		Commitment Commission; Fees; Reductions of Commitment	46
4.01		Fees	46
4.02		Voluntary Termination of Revolving Loan Commitments	47
4.03		Mandatory Reduction of Commitments	47
SECTION 5.		Prepayment Premiums	47
5.01		Prepayment Premiums	47
SECTION 6.		Prepayments; Payments; Taxes	49
6.01		Voluntary Prepayments	49
6.02		Mandatory Repayments	50
6.03		Method and Place of Payment	53
6.04		Net Payments	54
SECTION 7.		Conditions Precedent to Loans on the Closing Date	56
7.01		Credit Agreement; Notes	56
7.02		Officer’s Certificate	57
7.03		Opinions of Counsel	57
7.04		Company Documents	57
7.05		Consummation of the Refinancing	57
7.06		Pledge Agreement	57

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7.07		Security Agreement	58
7.08		Subsidiaries Guaranty	58
7.09		Financial Statements	58
7.10		Pro Forma Balance Sheet; Projections	58
7.11		Solvency Certificate; Insurance Certificates, Lien Searches etc	58
7.12		Fees, etc	59
7.13		AML, KYC	59
7.14		Borrowing Base Certificate	59
SECTION 8.		Conditions Precedent to All Loans	59
8.01		No Default; Representations and Warranties	59
8.02		Notice of Borrowing	60
SECTION 9.		Representations, Warranties and Agreements	60
9.01		Company Status	60
9.02		Power and Authority	60
9.03		No Violation	61
9.04		Approvals	61
9.05		Financial Condition; Projections	61
9.06		Litigation	62
9.07		True and Complete Disclosure	63
9.08		Margin Regulations	63
9.09		Tax Returns and Payments	63
9.10		Compliance with ERISA	63
9.11		Security Documents	64
9.12		Properties	65
9.13		Material Contracts	65
9.14		Subsidiaries	65
9.15		Compliance with Statutes, etc	66
9.16		Investment Company Act	66
9.17		Insurance	66
9.18		Environmental Matters	66
9.19		Employment and Labor Relations	66
9.20		Intellectual Property	66
9.21		EEA Financial Institution	67
9.22		Privacy and Information Security	67
9.23		Anti-Terrorism Laws	67
9.24		Anti-Corruption Laws	68
9.25		Capitalization	68

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9.26		Indebtedness	68
9.27		Nature of Business	68
9.28		Permits, Etc	69
9.29		Banks and Bank Accounts	69
9.30		Compliance with Financial Services Laws	69
SECTION 10.		Affirmative Covenants	69
10.01		Information Covenants	69
10.02		Books, Records and Inspections; Annual Meetings	72
10.03		Maintenance of Property; Insurance, Permits	72
10.04		Existence; Franchises	73
10.05		Compliance with Statutes, etc	73
10.06		Compliance with Environmental Laws	73
10.07		ERISA	74
10.08		End of Fiscal Years; Fiscal Quarters	75
10.09		Performance of Obligations	75
10.10		Ownership of Subsidiaries; etc.	75
10.11		Use of Proceeds	75
10.12		Additional Security; Further Assurances; etc	76
10.13		Compliance with Financial Services Laws	77
10.14		[Reserved]	77
10.15		[Reserved]	77
10.16		Anti-Terrorism and Anti-Corruption Laws	77
10.17		Permitted Acquisitions	78
10.18		Foreign Subsidiaries Security	79
10.19		Keepwell	80
10.20		Cash Management Systems	80
10.21		Board Information	81
SECTION 11.		Negative Covenants	81
11.01		Liens	81
11.02		Consolidation, Merger, Purchase or Sale of Assets, etc	84
11.03		Dividends	87
11.04		Indebtedness	88
11.05		Advances, Investments and Loans	90
11.06		Transactions with Affiliates	93
11.07		Issuance of Equity Interests by Subsidiaries	94
11.08		Fixed Charge Coverage Ratio	94
11.09		Total Net Leverage Ratio	95

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11.10		Asset Coverage Ratio	95
11.11		[Reserved]	96
11.12		Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Limitations on Voluntary Payments, etc	96
11.13		Limitation on Certain Restrictions on Subsidiaries	96
11.14		[Reserved]	97
11.15		Business; etc	97
11.16		[Reserved]	97
11.17		[Reserved]	97
SECTION 12.		Events of Default	97
12.01		Payments	97
12.02		Representations, etc	97
12.03		Covenants	97
12.04		Default Under Other Agreements	98
12.05		Bankruptcy, etc	98
12.06		ERISA	99
12.07		Security Documents	99
12.08		Guaranties	99
12.09		Judgments	99
12.10		Material Licenses and Approvals	99
12.11		Key Employees	99
12.12		Change of Control	99
12.13		Indictment	100
12.14		Conduct of Business	100
SECTION 13.		The Administrative Agent; The Collateral Agent	101
13.01		Appointment	101
13.02		Nature of Duties	102
13.03		Lack of Reliance on the Agents	103
13.04		Certain Rights of the Agents	104
13.05		Reliance	104
13.06		Indemnification	104
13.07		Each Agent in its Individual Capacity	104
13.08		Holders	105
13.09		Resignation by the Agents	105
13.10		Collateral Matters	105
13.11		Delivery of Information	106
13.12		Delegation of Duties	106

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13.13		No Reliance on either Agent’s Customer Identification Program; Certifications From Banks and Participants; US Patriot Act	107
SECTION 14.		Miscellaneous	108
14.01		Payment of Expenses, etc	108
14.02		Right of Setoff	109
14.03		Notices	109
14.04		Benefit of Agreement; Assignments; Participations	110
14.05		No Waiver; Remedies Cumulative	112
14.06		Payments Pro Rata	112
14.07		Calculations; Computations	113
14.08		GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL	113
14.09		Counterparts	114
14.10		Agreement Among Lenders	114
14.11		Headings Descriptive	115
14.12		Amendment or Waiver; etc	115
14.13		Survival	117
14.14		Domicile of Loans	117
14.15		Register	117
14.16		Confidentiality	118
14.17		Special Provisions Regarding Pledges of Equity Interests in, and Promissory Notes Owed by, Persons Not Organized in the United States	119
14.18		Patriot Act	119
14.19		Post-Closing Actions	120
14.20		Interest Rate Limitation	120
14.21		Entire Agreement	120
14.22		[Reserved]	120
14.23		Release	120
14.24		Acknowledgement and Consent to Bail-In of EEA Financial Institutions	121
14.25		Limitation on Permitted Discretion	121
SECTION 15.		Holdings and Borrowers Guaranty	122
15.01		Guaranty	122
15.02		Bankruptcy	122
15.03		Nature of Liability	123
15.04		Independent Obligation	123
15.05		Authorization	123
15.06		Reliance	124
15.07		Subordination	124

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15.08		Waiver	124
15.09		Payments	125
15.10		Maximum Liability	125

SCHEDULE I	Commitments
SCHEDULE II	Credit Party Addresses; Collateral Agent Address
SCHEDULE III	Real Property
SCHEDULE IV	Capitalization
SCHEDULE V	Subsidiaries
SCHEDULE VI	Existing Indebtedness
SCHEDULE VII	Insurance
SCHEDULE VIII	Existing Liens
SCHEDULE IX	Existing Investments
SCHEDULE X	Post-Closing Matters
SCHEDULE XI	Cash Management Accounts
SCHEDULE XII	Nature of Business
SCHEDULE XIII	Permits, Etc.
SCHEDULE XIV	Compliance with Money Transmission Laws
SCHEDULE XV	Material Contracts
SCHEDULE XVI	Passive Holding Company Activities
EXHIBIT A-1	Form of Notice of Borrowing
EXHIBIT A-2	Form of Notice of Conversion/Continuation
EXHIBIT B-1	Form of Term Note
EXHIBIT B-2	Form of Revolving Note
EXHIBIT C	Form of Section 6.04(b)(ii) Certificate
EXHIBIT D	Form of Officers’ Certificate
EXHIBIT E	Form of Subsidiaries Guaranty
EXHIBIT F	Form of Solvency Certificate
EXHIBIT G	Form of Compliance Certificate
EXHIBIT H	Form of Assignment and Assumption Agreement
EXHIBIT I	Form of Intercompany Note
EXHIBIT J	Form of Borrowing Base Certificate
EXHIBIT K	Form of Regulatory Certificate
EXHIBIT L	Form of Asset Coverage Compliance Certificate

Total Net Leverage Ratio		Eurodollar Rate Loans				Base Rate Loans
Greater than 2.25:1.00			9.00	%			8.00	%
Less than or equal to 2.25:1.00			8.50	%			7.50	%

Quarterly Payment Date		Quarterly Amortization Percentage
December 31, 2017 through September 30, 2019			1.25%
December 31, 2019 and each  Quarterly Payment Date thereafter			2.50%

Notwithstanding anything to the contrary contained in this Section 12, in the event that the Credit Parties fail (or, but for the operation of this paragraph, would fail) to comply with the covenants set forth in Sections 11.08, 11.09 and 11.10 (such applicable covenants, the “Financial Performance Covenants”) as of the last day of any fiscal quarter, at any time after such last day until the day that is 15 days after the date the certificate calculating the Financial Performance Covenants for such fiscal quarter is required to be delivered pursuant to Section 10.01(g) or, if earlier, on the date on which such certificate is delivered, Holdings shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to the capital of Holdings (collectively, the “Cure Right”), which cash shall be contributed as common Equity Interests to the Revolving Borrower (such contributed amount, the “Cure Amount”); provided, however, that such Cure Amount shall not exceed the amounts set forth below and such Financial Performance Covenants shall be recalculated by (x) increasing Consolidated EBITDA for purposes of any cure of Sections 11.08 and 11.09 and (y) increasing cash for purposes of Section 11.10, in each case with respect to such fiscal quarter and any four-quarter period that contains such fiscal quarter, solely for the purpose of measuring the Financial Performance Covenants and not for any other purpose under this Agreement (including any “baskets”), by an amount equal to the Cure Amount; provided, further, that, (i) until the Maturity Date there shall be no more than five Cure Rights exercised in the aggregate, and no more than two Cure Rights exercised during any four consecutive fiscal quarter period and not in successive fiscal quarters, (ii) for purposes of this paragraph, the Cure Amount shall (x) be no greater than the amount required for purposes of complying with the Financial Performance Covenant and (y) not exceed $4,000,000; provided that the aggregate amount of all Cure Amounts shall not exceed $10,000,000 and (iii) for the avoidance of doubt, in recalculating the Financial Performance Covenants by increasing Consolidated EBITDA as set forth above, there shall be no pro forma effect given to any reduction of Loans with the Cure Amount in such recalculation of the Financial Performance Covenants for the applicable fiscal period and any four-quarter period that contains such fiscal quarter (but pro forma effect shall be given to such reduction of Loans with the Cure Amount in subsequent fiscal periods). If, after giving effect to the adjustments in this paragraph, Holdings shall then be in compliance with the requirements of the Financial Performance Covenants, Holdings shall be deemed to have satisfied the requirements of the Financial Performance Covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the Financial Performance Covenants that had occurred shall be deemed cured for the purposes of this Agreement. In the event that no Event of Default exists other than that arising due to failure of the Credit Parties to comply with the Financial Performance Covenants, then until the expiration of the periods set forth above, neither Administrative Agent, the Collateral Agent nor any Lender shall exercise any remedies set forth in Section 12 hereof or under any Credit Document until after Holdings’ ability to cure has lapsed and Holdings has not exercised such Cure Right.  If Borrower intends to exercise its Cure Right in any fiscal quarter, Borrower shall deliver a notice thereof to the Administrative Agent and the Collateral Agent within five (5) Business Days following the date the certificate calculating the Financial Performance Covenants for such fiscal quarter is required to be delivered pursuant to Section 10.01(g) or, if earlier, on the date on which such certificate is delivered.

SECTION 13.         The Administrative Agent; The Collateral Agent.

13.01       Appointment.  The Lenders hereby irrevocably designate and appoint MC Admin as Administrative Agent and MC Admin as the Collateral Agent (for purposes of this Section 13, the term “Agents” shall refer to both MC Admin in its capacity as Administrative Agent and MC Admin in its capacity as the Collateral Agent pursuant to the Security Documents collectively, and the term “Agent” shall refer to each of them as applicable in their respective roles) to act as specified herein and in the other Credit Documents.  Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, the Agents to take such action on its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of each Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto.  The Agents may perform any of their respective duties hereunder by or through its officers, directors, agents, employees or Affiliates.

 

13.02       Nature of Duties.

(a)           No Agent shall have any duties or responsibilities except those expressly set forth in this Agreement and in the other Credit Documents.  Neither Agent nor any of their respective officers, directors, agents, employees or Affiliates shall be liable for any action taken or omitted by it or them hereunder or under any other Credit Document or in connection herewith or therewith, unless caused by its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final decision which is no longer subject to appeal).  The duties of each Agent shall be mechanical and administrative in nature; the Agents shall not have by reason of this Agreement or any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon the Agents any obligations in respect of this Agreement or any other Credit Document except as expressly set forth herein or therein.

(b)           Notwithstanding any other provision of this Agreement or any provision of any other Credit Document, the Lead Arranger and Documentation Agent are named as such for recognition purposes only, and in its capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby; it being understood and agreed that the Lead Arranger and Documentation Agent shall be entitled to all indemnification and reimbursement rights in favor of the Agents as, and to the extent, provided for under Sections 13.06 and 14.01.  Without limitation of the foregoing, neither the Lead Arranger nor Documentation Agent shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person.

(c)           Each Lender unconditionally and irrevocably acquits and fully forever releases and discharges each Agent and all its Affiliates, members, partners, subsidiaries, officers, employees, agents, attorneys, principals, directors and shareholders and its respective heirs, legal representatives, successors and assigns (collectively, the “Releasees”) on the date each interest payment on the Loans is made by a Borrower from any and all claims, demands, causes of action, obligations, remedies, suits, damages and liabilities of any nature whatsoever, whether now known, suspected or claimed, whether arising under common law, in equity or under statute, which such party hereto ever had or now has against any of the Releasees and which has arisen at any time prior to the date of such interest payment out of this Agreement, the other Credit Documents or any other related documents, instruments, agreements or matters or the enforcement or attempted or threatened enforcement by any of the Releasees of any of their respective rights, remedies or recourse related thereto (collectively, the “Released Claims”) (but in each case referred to in this clause (c), excluding any claims, demands, causes of actions, obligations, remedies, suits, damages or liabilities to the extent same occurred by reason of the gross negligence or willful misconduct of the Releasee to be indemnified (as determined by a court of competent jurisdiction in a final and non-appealable decision)).  Each Lender covenants and agrees never to commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any of the Releasees any action or other proceeding based upon any of the Released Claims.

 

13.03       Lack of Reliance on the Agents.

(a)           Each Lender from time to time party to this Agreement (i) confirms that it has received a copy of this Agreement and the other Credit Documents, together with copies of the financial statements referred to therein, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to become a Lender under this Agreement, (ii) agrees that it has made and will, independently and without reliance upon either Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Credit Documents and, except as expressly provided in this Agreement, the Agents shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, provided that, upon the reasonable request of a Lender, each Agent shall provide to such Lender any documents or reports delivered to such Agent by the Credit Parties pursuant to the terms of this Agreement or any other Credit Document unless such Agent is restricted from doing so due to confidentiality requirements of Section 14.16, (iii) acknowledges and agrees that no fiduciary or advisory relationship between either Agent and any Lender is intended to be or has been created in respect of any of the transactions contemplated by this Agreement, (iv) acknowledges and agrees that each Agent, on the one hand, and each Lender on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, and no Lender relies on, any fiduciary duty on either Agent’s part, (v) acknowledges and agrees that each Lender is capable of evaluating and understanding, and each such Lender understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement, (vi) acknowledges and agrees that each Agent or any of their respective Affiliates may have received fees or other compensation from any Credit Party or any Affiliate of any Credit Party in connection with this Agreement which may or may not be publicly disclosed and such fees or compensation do not affect any Lender’s independent credit decision to enter into the transactions contemplated by this Agreement, (vii) acknowledges and agrees that notwithstanding that no fiduciary or similar relationship exists between the Agents and any Lender, each such Lender hereby waives, to the fullest extent permitted by law, any claims it may have against the Agents or their Affiliates for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Agents and their Affiliates shall have no liability (whether direct or indirect) to any Lender in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on behalf of or in right of any Lender, including any such Lender’s Affiliates, members, partners, subsidiaries, officers, employees, agents, attorneys, principals, directors and shareholders and respective heirs, legal representatives, successors and assigns and creditors, in each case subject to and without limiting the terms of Section 13.02(a), and (viii) agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Credit Documents are required to be performed by it as a Lender.  The Agents shall not be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Credit Document or the financial condition of Holdings or any of its Subsidiaries or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Credit Document, or the financial condition of Holdings or any of its Subsidiaries or the existence or possible existence of any Default or Event of Default.

(b)           To the full extent permitted by applicable law, each party hereto and each Indemnified Person shall not assert, and hereby waives, any claim against any other party hereto or any other Indemnified Person, on any theory of liability, for special, indirect, consequential or incidental damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document, any other agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby or any Loan or the use of the proceeds thereof; provided, however, that the foregoing provisions shall not relieve a Borrower of its indemnification obligations as provided in Section 14.01(a) to the extent any Indemnified Person is found liable for any such damages.  No party hereto and no Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent the liability of such Person results from such Person’s gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final decision which is no longer subject to appeal); provided, however, that the foregoing provisions shall not relieve a Borrower of its indemnification obligations as provided in Section 14.01(a) to the extent any Indemnified Person is found liable for any such damages.

 

13.04       Certain Rights of the Agents.  If either Agent requests instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders; and such Agent shall not incur liability to any Lender by reason of so refraining.  Without limiting the foregoing, each Agent shall be entitled to refrain from any act or action, and neither any Lender nor the holder of any Note shall have any right of action whatsoever against such Agent as a result of such Agent refraining from such act or action, unless or until such Agent shall have received, pursuant to an escrow arrangement satisfactory to it, from  a Borrower or the Lenders an amount initially equal to $250,000 and supplemented or increased thereafter on a monthly basis to the extent necessary (in the reasonable judgment of such Agent) to reimburse such Agent for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by such Agent as a result of such act or action and for which such Agent would be entitled to indemnification pursuant to Section 13.06 or Section 14.01 hereof.  Any amounts subject to such escrow arrangement remaining after payment in full of all such indemnification obligations shall be returned to the Lenders or the Borrower, as applicable.

13.05       Reliance.  The Agents shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype, facsimile or e-mail message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that either Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Credit Document and its duties hereunder and thereunder, upon advice of counsel selected by either Agent.

13.06       Indemnification.  To the extent each Agent (or any Affiliate thereof) is not reimbursed and indemnified by a Borrower subject to Section 14.01, the Lenders will reimburse and indemnify each Agent (and any Affiliate thereof) in proportion to their respective “percentage” as used in determining the Required Lenders for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature (including, without limitation, any customary indemnifications provided to a deposit account bank pursuant to a “control agreement” referred to in the Security Agreement which may be imposed on, asserted against or incurred by such Agent (or any Affiliate thereof) in performing its duties hereunder or under any other Credit Document) or in any way relating to or arising out of this Agreement or any other Credit Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s (or such Affiliate’s) gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).  For the avoidance of doubt, this Section 13.06 shall not apply to Taxes, except any Taxes that represent liabilities arising from any non-Tax claims.

13.07       Each Agent in its Individual Capacity.  With respect to its obligation to make Loans under this Agreement each Agent shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the terms “Lender,” “Majority Lenders,” “Required Lenders,” “holders of Notes” or any similar terms shall, unless the context clearly indicates otherwise, include the Agents in their respective individual capacities.  The Agents and their Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any Credit Party or any Affiliate of any Credit Party (or any Person engaged in a similar business with any Credit Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any Credit Party or any Affiliate of any Credit Party for services in connection with this Agreement which may or may not be publicly disclose and otherwise without having to account for the same to the Lenders.

 

13.08       Holders.  Each Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent.  Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.

13.09       Resignation by the Agents.

(a)           Each Agent may resign from the performance of all its respective functions and duties hereunder and/or under the other Credit Documents at any time by giving 10 Business Days’ prior written notice to the Lenders and, unless an Event of Default under Section 12.05 then exists, the Revolving Borrower.  Such resignation shall take effect upon the appointment of a successor Agent pursuant to clauses (b) and (c) below or as otherwise provided below.

(b)           Upon any such notice of resignation by any Agent, the Required Lenders, with the prior consent of the Revolving Borrower, which shall not be unreasonably withheld or delayed, shall appoint a successor Agent hereunder or thereunder to fulfill the same role as the resigning Agent (provided that the Revolving Borrower’s consent shall not be required if an Event of Default pursuant to Sections 12.01 or 12.05 then exists) and in no event shall any such successor Agent be a Defaulting Lender or a Disqualified Institution.

(c)           If no successor Agent has been appointed pursuant to clause (b) above by the 3rd Business Day after the date such notice of resignation was given by such Agent, the applicable Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the applicable Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Agent as provided above.

(d)           Upon a resignation of any Agent pursuant to this Section 13.09, such Agent shall remain indemnified to the extent provided in this Agreement and the other Credit Documents and the provisions of this Section 13 (and the analogous provisions of the other Credit Documents) shall continue in effect for the benefit of such Agent for all of its actions and inactions while serving as the applicable Agent.

13.10       Collateral Matters.

(a)           Each Lender authorizes and directs the Collateral Agent to enter into the Security Documents for the benefit of the Lenders and the other Secured Creditors.  Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Security Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders.  The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents.

 

(b)           The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to (1) release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than inchoate indemnification obligations) at any time arising under or in respect of this Agreement or the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than Holdings and its Subsidiaries) upon the sale or other disposition thereof in compliance with Section 11.02, (iii) if approved, authorized or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent required by Section 14.12) or (iv) as otherwise may be expressly provided in the relevant Security Documents, and (2) release any Guarantor from its obligations under the applicable Guaranty if such Person ceases to be a Subsidiary Guarantor as a result of a transaction permitted under the Credit Documents or is otherwise permitted to be released from the applicable Guaranty pursuant to the Credit Documents.  Upon request by any Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral or Guarantors from its obligations under the Subsidiaries Guaranty pursuant to this Section 13.10.

(c)           The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Credit Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 13.10 or in any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).

13.11       Delivery of Information.  The Agents shall not be required to deliver to any Lender originals or copies of any documents, instruments, notices, communications or other information received by the Agents from any Credit Party, any Subsidiary, the Required Lenders, any Lender or any other Person under or in connection with this Agreement or any other Credit Document except (i) as specifically provided in this Agreement or any other Credit Document and (ii) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession of the Agents at the time of receipt of such request and then only in accordance with such specific request.

13.12       Delegation of Duties.  The Agents may perform any and all of their duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub agents appointed by either Agent (including, without limitation, MC Admin or any of its Affiliates).  Each 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 officers, directors, employees, representatives, agents, sub-agents or advisors thereof.  The Agents shall not be responsible for the negligence or misconduct of any respective sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub agents.

 

13.13       No Reliance on either Agent’s Customer Identification Program; Certifications From Banks and Participants; US Patriot Act.

 

(a)           Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on either Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other requirements imposed by the US Patriot Act or the regulations issued thereunder, including the regulations set forth in 31 CFR § 103.121, as hereafter amended or replaced (“CIP Regulations”), or any other Laws relating to the prevention of money laundering or the equivalent on any applicable jurisdiction, including any programs involving any of the following items relating to or in connection with any of the Credit Parties, their Affiliates or their agents, the Credit Documents or the transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2) any recordkeeping, (3) comparisons with government lists, (4) customer notices or (5) other procedures required under the CIP Regulations or other regulations issued under the US PATRIOT Act. Each Lender, Affiliate, participant or assignee subject to Section 326 of the US PATRIOT Act will perform the measures necessary to satisfy its own responsibilities under the CIP Regulations or any equivalent provisions in any applicable jurisdiction.

(b)           Each Lender or assignee or participant of a Lender that is not incorporated under the laws of the United States or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the US PATRIOT Act and the applicable regulations because it is both (i) an Affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (ii) subject to supervision by a banking authority regulating such Affiliated depository institution or foreign bank) shall deliver to each Agent the certification, or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to other matters as required by Section 313 of the US PATRIOT Act and the applicable regulations: (1) within ten days after the Closing Date, and (2) as such other times as are required under the US PATRIOT Act.

(c)          The US PATRIOT Act requires all financial institutions to obtain, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, each Agent or Lender may from time to time request, and each Credit Party shall provide to such agents or Lender, each Borrower’s name, address, tax identification number and/or such other identifying information as shall be necessary for Lender to comply with Anti-Terrorism Laws.

 

SECTION 14.         Miscellaneous.

14.01       Payment of Expenses, etc.

(a)           Each Borrower hereby agrees to: (i) pay all reasonable and documented (with supporting documentation) out-of-pocket costs and expenses of the Administrative Agent and the Collateral Agent (including, without limitation, the reasonable and documented (with supporting documentation) fees and disbursements of Weil, Gotshal & ▇▇▇▇▇▇ LLP, as the Administrative Agent’s and Collateral Agent’s counsel) in connection with the preparation, execution, delivery and administration of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein and any amendment, waiver or consent relating hereto or thereto, of the Administrative Agent, the Collateral Agent and their respective Affiliates in connection with its or their syndication efforts with respect to this Agreement, (ii) after the occurrence of an Event of Default, each of the Administrative Agent, the Collateral Agent and Lenders in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings (including, in each case without limitation, the reasonable and documented (with supporting documentation) fees and disbursements of counsel and consultants for the Administrative Agent, the Collateral Agent and the Lenders, collectively, which shall be limited to separate counsel for the Administrative Agent and the Collateral Agent, one counsel to the other Secured Creditors, one special counsel and one local counsel to the Secured Creditors taken as a whole in each relevant jurisdiction and, solely in the case of any conflict, one additional counsel for all similarly situated Secured Creditors and (iii) indemnify the Administrative Agent, the Collateral Agent and each Lender, and each of their respective officers, directors, employees, representatives, agents, Affiliates, trustees and investment advisors (each, an “Indemnified Person”) from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), actual losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of entering into and/or performance of this Agreement or any other Credit Document or the proceeds of any Loans hereunder or the consummation of the Transaction or any other transactions contemplated herein or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, including without limitation, (a) any investigation, litigation or other proceeding (whether or not the Administrative Agent, the Collateral Agent or any Lender is a party thereto and whether or not such investigation, litigation or other proceeding is brought by or on behalf of any Credit Party) in connection therewith or (b) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater or on the surface or subsurface of any Real Property at any time owned, leased or operated by Holdings or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of Hazardous Materials by Holdings or any of its Subsidiaries at any location, whether or not owned, leased or operated by Holdings or any of its Subsidiaries, the non-compliance by Holdings or any of its Subsidiaries with any Environmental Law (including applicable permits thereunder) applicable to any Real Property, or any Environmental Claim asserted against Holdings, any of its Subsidiaries or any Real Property at any time owned, leased or operated by Holdings or any of its Subsidiaries, including, in each case, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNIFIED PERSON, provided that such indemnity shall not, as to any Indemnified Person, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final judgment which is no longer subject to appeal to have resulted from the bad faith, gross negligence or willful misconduct of any Indemnified Person, (B) result from a claim brought by any Credit Party or any Subsidiary thereof against an Indemnified Person for material breach of such Indemnified Person’s obligations or of their related parties hereunder or under any other Credit Document, if such Credit Party or such Subsidiary has obtained a final judgment in its favor on such claim as determined by a court of competent jurisdiction, which is no longer subject to appeal, (C) arise from claims of any Indemnified Person solely against one or more other Indemnified Persons (other than claims against the Administrative Agent, the Collateral Agent, Lead Arranger, Documentation Agent or other similar Persons, in their respective capacities as such) that do not involve or have not resulted from an act or omission by any Credit Party or any Subsidiary or (D) relate to any settlement agreements entered into by an Indemnified Person without the prior written consent of the Revolving Borrower (not to be unreasonably withheld, conditioned or delayed).  This Section 14.01 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.  To the extent that the undertaking to indemnify, pay or hold harmless the Administrative Agent, the Collateral Agent or any Lender set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, each Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.

 

(b)           To the full extent permitted by applicable law, no party hereto shall assert, and hereby waives (to the extent permitted by applicable law), any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or incidental damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof; provided that such waiver shall not limit the indemnification obligations of the Credit Parties set forth in clause (a) above.  No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent the liability of such Indemnified Person results from such Indemnified Person’s gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final decision which is no longer subject to appeal).

14.02       Right of Setoff.

(a)           In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and each Lender (upon the prior written consent of the Required Lenders) is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Credit Party or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special but other than Excluded Accounts) and any other Indebtedness at any time held or owing by the Administrative Agent, the Collateral Agent or such Lender or any Affiliate, branch or agency thereof (including, without limitation, by branches and agencies of the Administrative Agent, the Collateral Agent or such Lender wherever located) to or for the credit or the account of Holdings or any of its Subsidiaries against and on account of the Obligations and liabilities of the Credit Parties then due and owing to the Administrative Agent, the Collateral Agent or such Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Obligations purchased by such Lender pursuant to Section 14.04(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not the Administrative Agent, the Collateral Agent or such Lender shall have made any demand hereunder. Each Lender agrees to notify the Revolving Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

(b)           [Reserved].

14.03       Notices.  Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including via email, facsimile and other electronic communication) and mailed, emailed, faxed or otherwise delivered: if to any Credit Party, at the address specified on Schedule II or in the other relevant Credit Documents; if to any Lender or the Collateral Agent, at its address specified on Schedule II; and if to the Administrative Agent, at the Notice Office; or, as to any Credit Party, the Administrative Agent or the Collateral Agent, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to the Revolving Borrower, the Administrative Agent and the Collateral Agent.  All such notices and communications shall, when mailed (certified return receipt required), emailed, faxed or sent by overnight courier, be effective when deposited in the mails, delivered to the email service provider or overnight courier, as the case may be, or sent by fax or email, except that notices and communications to the Administrative Agent, the Collateral Agent and any Credit Party shall not be effective until received by the Administrative Agent, the Collateral Agent or the Revolving Borrower or any Credit Party, as the case may be.

 

14.04       Benefit of Agreement; Assignments; Participations.

(a)           This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, no Credit Party may assign or transfer any of its rights, obligations or interest hereunder without the prior written consent of the Lenders (other than in connection with a transaction expressly permitted hereunder) and, provided further, that, although any Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments or Obligations hereunder except as provided in Sections 2.13 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and, provided further, that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 14.07(a) shall not constitute a reduction in the rate of interest or Fees payable hereunder), or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment (or the available portion thereof) or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating.  In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by a Borrower hereunder shall be determined as if such Lender had not sold such participation. Notwithstanding the foregoing, prior to the occurrence of any Event of Default pursuant to Sections 12.01 or 12.05, no assignments or participations shall be made to any Disqualified Institutions.