CREDIT AGREEMENT
Dated as of September 16, 2021
among
STARBUCKS CORPORATION,
as the Company,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
WELLS FARGO BANK, N.A.,
CITIBANK, N.A.
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Syndication Agents and
L/C Issuers,
JPMORGAN CHASE BANK, N.A.,
THE BANK OF NOVA SCOTIA,
and
MORGAN STANLEY MUFG LOAN PARTNERS, LLC,
as Co-Documentation Agents,
and
The Other Lenders Party Hereto
BOFA SECURITIES, INC.,
WELLS FARGO SECURITIES, LLC,
CITIBANK, N.A.,
and
U.S. BANK NATIONAL ASSOCIATION
as
Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Section
Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms
1
1.02 Other Interpretive Provisions
27
1.03 Accounting Terms
28
1.04 Times of Day
29
1.05 Letter of Credit Amounts
29
1.06 Rounding
29
1.07 Interest Rates
29
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans
29
2.02 Borrowings, Conversions and Continuations of Loans
30
2.03 [Reserved.]
31
2.04 Letters of Credit
31
2.05 Swing Line Loans
41
2.06 Prepayments
44
2.07 Termination or Reduction of Commitments
45
2.08 Repayment of Loans
45
2.09 Interest
45
2.10 Fees
46
2.11 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
47
2.12 Evidence of Debt
47
2.13 Payments Generally; Administrative Agent’s Clawback
48
2.14 Sharing of Payments by Lenders
50
2.15 Increase in Commitments
51
2.16 Cash Collateral
52
2.17 Defaulting Lenders
53
2.18 Extension of Maturity Date
56
i
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes
57
3.02 Illegality
62
3.03 Inability to Determine Rates
63
3.04 Increased Costs; Additional Reserve Requirements
65
3.05 Compensation for Losses
67
3.06 Mitigation Obligations; Replacement of Lenders
68
3.07 Survival
69
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension
69
4.02 Conditions to all Credit Extensions
70
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power
71
5.02 Authorization; No Contravention
71
5.03 Governmental Authorization; Other Consents
72
5.04 Binding Effect
72
5.05 Financial Statements; No Material Adverse Effect
72
5.06 Litigation
73
5.07 No Default
73
5.08 Ownership of Property; Liens
73
5.09 Environmental Compliance
73
5.10 Insurance
73
5.11 Taxes
73
5.12 ERISA Compliance
74
5.13 Subsidiaries; Equity Interests
74
5.14 Margin Regulations; Investment Company Act
75
5.15 Disclosure
75
5.16 Compliance with Laws
75
5.17 Intellectual Property; Licenses, Etc.
75
5.18 OFAC
76
ii
5.19 Anti-Corruption Laws
76
5.20 Affected Financial Institution
76
5.21 ERISA Matters
76
5.22 Beneficial Ownership Certification
76
5.23 Covered Entity
76
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements
77
6.02 Certificates; Other Information
77
6.03 Notices
79
6.04 Payment of Obligations
80
6.05 Preservation of Existence, Etc.
80
6.06 Maintenance of Properties
80
6.07 Maintenance of Insurance
80
6.08 Compliance with Laws
80
6.09 Books and Records
80
6.10 Inspection Rights
80
6.11 Use of Proceeds
81
6.12 Anti-Corruption Laws
81
6.13 Know Your Customer
81
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Liens
81
7.02 Indebtedness
83
7.03 Fundamental Changes; Dispositions
83
7.04 Change in Nature of Business
84
7.05 Transactions with Affiliates
84
7.06 Consolidated Fixed Charge Coverage Ratio
84
7.07 [Reserved]
84
7.08 Sanctions
84
7.09 Anti-Corruption Laws
84
iii
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default
85
8.02 Remedies Upon Event of Default
86
8.03 Application of Funds
87
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority
88
9.02 Rights as a Lender
88
9.03 Exculpatory Provisions
89
9.04 Reliance by Administrative Agent
90
9.05 Delegation of Duties
90
9.06 Resignation of Administrative Agent
90
9.07 Non-Reliance on Administrative Agent and Other Lenders
92
9.08 No Other Duties, Etc.
93
9.09 Administrative Agent May File Proofs of Claim
93
9.10 Certain ERISA Matters
93
9.11 Recovery of Erroneous Payments
94
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc.
95
10.02 Notices; Effectiveness; Electronic Communication
96
10.03 No Waiver; Cumulative Remedies; Enforcement
98
10.04 Expenses; Indemnity; Damage Waiver
99
10.05 Payments Set Aside
101
10.06 Successors and Assigns
102
10.07 Treatment of Certain Information; Confidentiality
107
10.08 Right of Setoff
108
10.09 Interest Rate Limitation
109
10.10 Counterparts; Integration; Effectiveness
109
10.11 Survival of Representations and Warranties
109
10.12 Severability
110
10.13 Replacement of Lenders
110
iv
10.14
Governing Law; Jurisdiction; Etc.
111
10.15
Waiver of Jury Trial
112
10.16
USA PATRIOT Act Notice
112
10.17
Judgment Currency
112
10.18
No Advisory or Fiduciary Responsibility
113
10.19
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
113
10.20
Acknowledgement Regarding Any Supported QFCs
114
SIGNATURES
S-1
v
SCHEDULES
1.01(e) Existing Letters of Credit
2.01
Commitments and Applicable Percentages
7.01
Existing Liens
10.02 Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS
Form of
A
Committed Loan Notice
B
Swing Line Loan Notice
C
Note
D
Compliance Certificate
E
Assignment and Assumption
F
U.S. Tax Compliance Certificates
G
Letter of Credit Report
vi
CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) is entered into as of September 16, 2021, among
STARBUCKS CORPORATION
, a Washington corporation (the “Company”), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”),
WELLS FARGO BANK, N.A.
, as an
L/C Issuer,
CITIBANK, N.A.
, as an L/C Issuer,
U.S. BANK NATIONAL ASSOCIATION,
as an L/C Issuer,
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and an L/C Issuer.
The Company has requested that the Lenders provide a revolving credit facility, and the Lenders are
willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and
agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01
Defined Terms
.
As used in this Agreement, the following terms will have the meanings set forth
below:
“Additional Commitment Lender” has the meaning specified in Section 2.18(d).
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the
Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address
and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address
or account with respect to such currency as the Administrative Agent may from time to time notify to the
Company and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial
Institution.
“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.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” means this Credit Agreement.
“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the
ninth decimal place) of the Aggregate Commitments represented by such
1
Lender’s Commitment at such time, subject to adjustment as provided in Section 2.17. If the commitment of
each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable
Percentage of each Lender will be determined based on the Applicable Percentage of such Lender most recently
in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Debt
Rating as set forth below:
Applicable Rate
Pricing
Level
Debt Ratings
S&P/Moody’s
Facility Fee
Eurocurrency Rate
Loans + Letter of
Credit Fee
Base Rate
Loans and
Swingline
Loans
I
> A / A2
0.070%
0.680%
0.000%
II
A-/ A3
0.090%
0.910%
0.000%
III
BBB+ / Baa1
0.100%
1.025%
0.025%
IV
BBB / Baa2
0.125%
1.125%
0.125%
V
< BBB- / Baa3
0.175%
1.325%
0.325%
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate
delivered pursuant to Section 4.01(a)(vii). Thereafter, each change in the Applicable Rate resulting from a
publicly announced change in the Debt Rating shall be effective, in the case of an upgrade, during the period
commencing on the date of the public announcement and ending on the date immediately preceding the
effective date of the next such change and, in the case of a downgrade, during the period commencing on the
date of the public announcement thereof and ending on the date immediately preceding the effective date of the
next such change. If the rating system of Moody’s or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Company and the Lenders shall negotiate in
good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from
such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such change or cessation.
“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 BofA Securities, WFS, Citi and U.S. Bank, in their capacities as joint lead arrangers
and joint book managers.
2
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted
by the Administrative Agent, in substantially the form of Exhibit E or any other form (including electronic
documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.
“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 September 27, 2020, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries,
including the notes thereto.
“Availability Period” means the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.07, and (c) the
date of termination of the commitment of each Lender to make Loans and of the obligation of each L/C Issuer to
make L/C Credit Extensions pursuant to Section 8.02.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark,
as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be
used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated
with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) 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, regulation, rule or requirement for such EEA Member Country from time to time that is described in the
EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom
Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions
or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A. and its successors.
3
“Base Rate”
means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds
Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by
Bank of America as its “prime rate,” and (c) the Eurocurrency Rate plus 1.00%. The “prime rate” is a rate set by
Bank of America based upon various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America
will take effect at the opening of business on the day specified in the public announcement of such change,
which date will not be earlier than the date of the public announcement. If the Base Rate is being used as an
alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of clauses
(a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans will be
denominated in US Dollars.
“Benchmark” means, initially, LIBOR; provided that if a replacement of the Benchmark has occurred
pursuant to Section 3.03(c) then “Benchmark” means the applicable Benchmark Replacement to the extent that
such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall
include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means:
(1) For purposes of Section 3.03(c)(i), the first alternative set forth below that can be determined by the
Administrative Agent:
(a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-
month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826%
(42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an
Available Tenor of twelve-months’ duration, or
(b) the sum of: (i) Daily Simple SOFR and (ii) 0.11448% (11.448 basis points);
provided that, if initially LIBOR is replaced with the rate contained in clause (b) above (Daily Simple
SOFR plus the applicable spread adjustment) and subsequent to such replacement, the Administrative Agent
determines that Term SOFR has become available and is administratively feasible for the Administrative Agent
in its sole discretion, and the Administrative Agent notifies the Company and each Lender of such availability,
then from and after the beginning of the Interest Period, relevant interest payment date or payment period for
interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the
Benchmark Replacement shall be as set forth in clause (a) above; and
(2) For purposes of Section 3.03(c)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment
(which may be a positive or negative value or zero), in each case, that has been selected by the Administrative
Agent and the Company as the replacement Benchmark giving due consideration to any evolving or then-
prevailing market convention, including any applicable recommendations made by a Relevant Governmental
Body, for US Dollar-denominated syndicated credit facilities at such time;
4
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be
less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and
the other Loan Documents.
Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that
to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark
Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement,
any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the
definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and
making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices,
the applicability and length of lookback periods, the applicability of breakage provisions, and other technical,
administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the
adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the
Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent
decides that adoption of any portion of such market practice is not administratively feasible or if the
Administrative Agent determines that no market practice for the administration of such Benchmark
Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably
necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the
occurrence of a public statement or publication of information by or on behalf of the administrator of the then-
current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating
that all Available Tenors are or will no longer be representative, or made available, or used for determining the
interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication,
there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide
any representative tenors of such Benchmark after such specific date.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the
Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I
of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets
include “plan assets” (as determined under ERISA Section 3(42)) of any such “employee benefit plan” or
“plan”.
“BofA Fee Letter” means the letter agreement, dated August 24, 2021, among the Company, Bank of
America and BofA Securities.
5
“BofA Securities” means BofA Securities, Inc., and its successors.
“Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
“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 is located and, if such day relates to any Eurocurrency Rate Loan, means any such day that is also a
London Banking Day.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the Administrative Agent, any L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as
collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund
participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the
applicable L/C Issuer or the Swing Line Lender benefitting from such collateral shall agree in its sole discretion,
other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the
Administrative Agent and (b) the applicable L/C Issuer or the Swing Line Lender (as applicable). “Cash
Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash
collateral and other credit support.
“CGMI” means Citigroup Global Markets Inc. and its successors.
“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,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) 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.
“Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan)
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, except that a person or group will be deemed to have “beneficial ownership” of all securities that
such person or group has the right to acquire (such right, an “option right”), whether such option right is
exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the
equity securities of the Company entitled to vote for members of the board of directors or equivalent
governing body of the Company on a fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option right); or
6
(b) during any period of 12 consecutive months, a majority of the members of the board of directors
or other equivalent governing body of the Company cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by individuals referred to in clause
(i) above constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or equivalent governing body.
“Citi” means Citibank N.A. and its successors.
“Citi Fee Letter” means the letter agreement, dated August 24, 2021, among the Company and CGMI.
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to the Company
pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the US Dollar
Equivalent amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.
“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same
Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same Interest Period made
by each of the Lenders pursuant to Section 2.01.
“Committed Loan” has the meaning specified in Section 2.01.
“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Loans
(other than Swing Line Loans) from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans,
pursuant to Section 2.02(a), which will be substantially in the form of Exhibit A or such other form as may be
approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible
Officer of the Company.
“Company” has the meaning specified in the introductory paragraph hereto.
“Company Materials” has the meaning specified in Section 6.02.
7
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net
income (however denominated) or that are franchise Taxes or branch profits Taxes.
“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 (a) the following to the extent deducted
in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the
provision for federal, state, local and foreign income taxes payable by the Company and its Subsidiaries
excluding any tax credits for such period, (iii) depreciation and amortization expense, (iv) fees, charges,
reserves, costs or expenses related to litigation, restructuring, severance activities, discontinued operations,
casualty events and financing, acquisition or divestiture activities; provided, that the total cash amount of such
items shall not exceed $250,000,000 in the aggregate for such period, and (v) other expenses of the Company
and its Subsidiaries reducing such Consolidated Net Income that do not represent a cash item in such period or
any future period
and minus (b) the following to the extent included in calculating such Consolidated Net
Income: (i) federal, state, local and foreign income tax credits of the Company and its Subsidiaries for such
period and (ii) non-recurring gains increasing Consolidated Net Income (or reducing net loss) that do not
represent cash items for such period or any future period.
“Consolidated Fixed Charge Coverage Ratio” means, as of the last day of each fiscal quarter of the
Company, for the period of the four immediately preceding fiscal quarters ending on such date, for the Company
and its Subsidiaries on a consolidated basis, the ratio of (a) the sum of (i) Consolidated EBITDA during such
period plus (ii) Operating Lease and Rental Expense during such period
to
(b) the sum of (x) Consolidated
Interest Charges during such period plus, without duplication, (y) Operating Lease and Rental Expense during
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 in connection with the deferred purchase price of assets, in 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 Net Income” means, for any period, for the Company and its Subsidiaries on a consolidated
basis, the net income of the Company and its Subsidiaries (excluding extraordinary gains but including
extraordinary losses) for that period.
“Consolidated Total Assets” means, as of the date of determination, the total assets of the Company and
its Subsidiaries which would be shown as assets on a consolidated balance sheet of the Company as of such time
prepared in accordance with GAAP.
8
“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” 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.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Credit Party” means each L/C Issuer, the Swing Line Lender, and each Lender.
“Daily Simple SOFR” with respect to any applicable determination date means the secured overnight
financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator
of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any
successor source).
“Debt Rating” means, as of any date of determination, the rating as
determined by either S&P or Moody’s
(collectively, the “Debt Ratings”) of the Company’s non-credit-enhanced, senior unsecured long-term debt;
provided that (a) if the respective Debt Ratings issued by the foregoing rating agencies differ by one level, then
the Pricing Level for the higher (better) of such Debt Ratings shall apply (with the Debt Rating for Pricing Level
I being the highest and the Debt Rating for Pricing Level V being the lowest); (b) if there is a split in Debt
Ratings of more than one level, then the Pricing Level that is one level lower than the Pricing Level of the
higher Debt Rating shall apply; (c) if the Company has only one Debt Rating, the Pricing Level of such Debt
Rating shall apply; and (d) if the Company does not have any Debt Rating, Pricing Level V shall apply.
“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 (a) when used with respect to Obligations other than Letter of Credit Fees, an
interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate will be
an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus
2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.
9
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as reasonably determined by the
Administrative Agent, (a) has failed to (i) fund all or any portion of its Loans within three Business Days of the
date such Loans were required to be funded by it hereunder unless such Lender notifies the Administrative
Agent and the Company in writing that such failure is the result of such Lender’s reasonable 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, any L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it
hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within three
Business Days of the date when due, (b) has notified the Company, the Administrative Agent, any L/C Issuer or
the Swing Line Lender 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 indicates that such position is based on such Lender’s reasonable
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), or (d) has, or has
a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief
Law, (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, or (iii) become the subject of a Bail-In Action; 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. Any
determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of
clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the
date established therefor by the Administrative Agent in a written notice of such determination, which shall be
delivered by the Administrative Agent to the Company, each L/C Issuer, the Swing Line Lender and each other
Lender promptly following such determination.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself
is the subject of any Sanction.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale
and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated
therewith.
10
“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business
Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative
Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice
of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in
Election from Lenders comprising the Required Lenders.
“Early Opt-in Election” means the occurrence of:
(1)
a determination by the Administrative Agent, or a notification by the Company to the Administrative
Agent that the Company has made a determination, that US Dollar-denominated syndicated credit
facilities currently being executed, or that include language similar to that contained in
Section 3.03(c), are being executed or amended (as applicable) to incorporate or adopt a new
benchmark interest rate to replace LIBOR, and
(2)
the joint election by the Administrative Agent and the Company to replace LIBOR with a Benchmark
Replacement and the provision by the Administrative Agent of written notice of such election to the
Lenders.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA
Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in
an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any
financial institution established in an EEA Member Country that 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 EEA Financial Institution.
“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any
other Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and
operated for, the primary benefit of a natural person) approved by (i) the Administrative Agent, each L/C Issuer
and the Swing Line Lender, and (ii) unless an Event of Default has occurred and is continuing, the Company
(provided that the Company will be deemed to have consented to any such assignment unless it shall object
thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice
thereof) (each such approval not to be unreasonably withheld, conditioned or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” will not include (x) the Company or any of the Company’s
Affiliates or Subsidiaries, (y) 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 (y), or
(z) a natural person (or a holding company, investment vehicle or trust for, or owned and operated for, the
primary benefit of a natural person).
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“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 or any of its
respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials 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.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person,
all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder.
“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 or Multiemployer 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
Pension Plan or Multiemployer Plan amendment as a termination under Sections 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; (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; or (g) the determination that any Pension Plan is considered
an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the
Code or Sections 303, 304 and 305 of ERISA.
12
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan
Market Association (or any successor person), as in effect from time to time.
“Eurocurrency Rate” means:
(a) With respect to any Credit Extension, the rate per annum equal to the London Interbank
Offered Rate (“LIBOR”) or a comparable or successor rate which rate is approved by the
Administrative Agent, as published on the applicable Bloomberg screen page (or such other
commercially available source providing such quotations as may be designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;
(b) for any rate calculation with respect to a Base Rate Loan on any date, the rate per annum
equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such
date for US Dollar deposits with a term of one month commencing that day;
provided that (i) to the extent a comparable or successor rate is approved by the
Administrative Agent in connection with any rate set forth in this definition, the approved rate
shall be applied in a manner consistent with market practice; provided, further that to the extent
such market practice is not administratively feasible for the Administrative Agent, such approved
rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent;
and provided, further that if the Eurocurrency Rate shall be less than zero, such rate shall be
deemed zero for purposes of this Agreement.
“Eurocurrency Rate Loan” means a Loan (other than a Swing Line Loan) that bears interest at a rate based
on clause (a) of the definition of “Eurocurrency Rate.”
“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 any Recipient or
required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net
income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result
of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender,
its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that
are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment
pursuant to a law in effect on the date on which (x) such Lender acquires such interest in the Loan or
Commitment (other than pursuant to an assignment request by the
13
Company under Section 10.13) or (y) such Lender changes its Lending Office, except in each case to the extent
that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), 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 to comply with
Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Existing Credit Agreements” means (i) that certain Credit Agreement dated as of October 23, 2017 (as
amended) among the Company, Bank of America, as administrative agent, and the lenders party thereto and
(ii) that certain Second Amended and Restated 364-Day Credit Agreement dated as of September 23, 2020
among the Company, Bank of America, as administrative agent, and the lenders party thereto.
“Existing Letters of Credit” means the Letters of Credit set forth on Schedule 1.01(e).
“Existing Maturity Date” has the meaning specified in Section 2.18(a).
“Facility Fee” has the meaning specified in Section 2.10(a).
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards
Board.
“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), any current or future regulations or official interpretations thereof, any agreements entered into pursuant
to Section 1471 (b) (1) of the Code and any applicable intergovernmental agreements with respect thereto.
“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 as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day will be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day will be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent; provided however that if the Federal Funds Rate as so
determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letters” means each of the BofA Fee Letter, the Wells Fargo Fee Letter, the Citi Fee Letter and the
U.S. Bank Fee Letter, collectively, the “Fee Letters.”
“Foreign Lender” means, with respect to the Company, any Lender that is organized under the laws of a
jurisdiction other than that in which the Company is resident for tax purposes (including such a Lender when
acting in the capacity of an L/C Issuer). For purposes of this definition, the United States, each State thereof and
the District of Columbia will be deemed to constitute a single jurisdiction.
14
“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, (a) with respect to an L/C Issuer,
such Defaulting Lender’s Applicable Percentage 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, and (b) with respect to the Swing Line Lender, such
Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its
activities.
“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 the government of the United States or any other nation, or of any
political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government (including any supra-national bodies such as the European
Union or the European Central Bank).
“Guarantee” means, as to any Person, (a) 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), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other
Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee will 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.
15
“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.
“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 in the ordinary course of business and, in each case, not past due for more
than 90 days after the date on which such trade account payable was created);
(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 will have been assumed by such Person or is limited in
recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person will include the Indebtedness of any partnership
or joint venture (other than a joint venture that is itself a corporation or limited 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 will 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 will be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
16
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any
payment made by or on account of the Company under any Loan Document, and (b) to the extent not otherwise
included in clause (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 10.04(b).
“Information” has the meaning specified in Section 10.07.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for
a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the
beginning of such Interest Period will also be Interest Payment Dates; and (b) as to any Base Rate Loan
(including a Swing Line Loan), the last Business Day of each March, June, September and December and the
Maturity Date.
“Interest Period”
means, as to each Eurocurrency Rate Loan, the period commencing on the date such
Eurocurrency Rate Loan is disbursed, or converted to or continued as a Eurocurrency Rate Loan, and ending on
the date one, three or six months thereafter, as selected by the Company in its Committed Loan Notice; provided
that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless, in the case of a Eurocurrency Rate Loan, such
Business Day falls in another calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
(b) any Interest Period pertaining to a Eurocurrency Rate Loan 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
(c) no Interest Period will extend beyond the Maturity Date.
“IP Rights” has the meaning specified in Section 5.17.
“IRS” means the United States Internal Revenue Service.
“ISP” means the International Standby Practices, International Chamber of Commerce Publication
No. 590 (or such later version thereof as may be in effect at the applicable time).
“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 applicable L/C Issuer and the Company (or any
Subsidiary) or in favor of the applicable L/C Issuer and relating to any such Letter of Credit.
17
“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 Applicable Percentage. All L/C Advances will be denominated in US Dollars.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit that
has not been reimbursed on the date when made or refinanced as a Committed Borrowing. All L/C Borrowings
will be denominated in US Dollars.
“L/C Commitment” means, as to each L/C Issuer, its obligation to issue Letters of Credit in an aggregate
principal stated amount at any one time outstanding that, together with all L/C Obligations issued by such L/C
Issuer and owing then thereto, does not exceed the US Dollar Equivalent of $37,500,000.
“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 Bank of America, Wells Fargo, Citibank, N.A., or U.S. Bank, each in its capacity as
issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder and any Lender
appointed by the Company (with the consent of the Administrative Agent and the consent of such Lender) as an
L/C Issuer by notice to the Lenders as a replacement for any L/C Issuer who is at the time of such appointment a
Defaulting Lender.
“L/C Obligations” means, as of any date of determination, the aggregate amount available to be drawn
under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit will be determined in accordance with Section 1.07. 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 Article 29(a) of the UCP or Rule 3.13 or Rule 3.14 of the ISP
or similar terms of the Letter of Credit itself, or if compliant documents have been presented but not yet
honored, such Letter of Credit shall be deemed to be “outstanding” and “undrawn” in the amount so remaining
available to be paid, and the obligations of the Company and each Lender shall remain in full force and effect
until the L/C Issuers and the Lenders shall have no further obligations to make any payments or disbursements
under any circumstances with respect to any Letter of Credit.
“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires,
includes the Swing Line Lender.
18
“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, which office may include any Affiliate of such Lender or any
domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each
reference to a Lender shall include its applicable Lending Office.
“Letter of Credit” means any standby
letter of credit issued hereunder and shall include the Existing
Letters of Credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a
Letter of Credit in the form from time to time in use by the applicable L/C Issuer.
“Letter of Credit Expiration Date” means the day that is seven Business Days prior to the Maturity Date
then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.04(h).
“Letter of Credit Report” means a certificate substantially the form of Exhibit G or any other form
approved by the Administrative Agent.
“Letter of Credit Sublimit” means an amount equal to the US Dollar Equivalent of $150,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
“LIBOR” has the meaning specified in the definition of Eurocurrency Rate.
“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 in the
nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to real property, and any
financing lease having substantially the same economic effect as any of the foregoing).
“Loan” means an extension of credit by a Lender to the Company under Article II in the form of a
Committed Loan or a Swing Line Loan.
“Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement creating or
perfecting rights in Cash Collateral pursuant to the provisions of Section 2.16 and the Fee Letters.
“London Banking Day” means any day on which dealings in US Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the
Company or the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Company 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 the Company of any Loan Document to
which it is a party.
19
“Material Subsidiary” means each Subsidiary of the Company that meets any of the following tests: (a) its
assets equal or exceed 5% of Consolidated Total Assets of the Company and its Subsidiaries, or (b) its revenues
equal or exceed 5% of the total revenues of the Company and its Subsidiaries on a consolidated basis; provided
that (i) if the Subsidiaries that meet either of the tests in (a) or (b), when combined with revenues generated or
assets owned directly by the Company (excluding any assets or revenues located or generated at the Subsidiary
level), aggregate less than 75% of the Consolidated Total Assets or total revenues of the Company and its
Subsidiaries on a consolidated basis, the Company shall identify additional Subsidiaries to constitute Material
Subsidiaries until such threshold is met, and (ii) once a Subsidiary is deemed a Material Subsidiary, whether by
virtue of the tests in (a) and (b) above, or as a result of appointment pursuant to part (i) of this proviso, such
Subsidiary shall continue to constitute a Material Subsidiary throughout the term of this Agreement.
“Maturity Date” means the later of (a) September 16, 2026 and (b) if maturity is extended pursuant to
Section 2.18 such extended maturity date as determined pursuant to such Section; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Modification Date” has the meaning specified in Section 2.18(a).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“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-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment
that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of
Section 10.01 and (b) has been approved by the Required Lenders.
“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 promissory note made by the Company in favor of a Lender or its registered assigns
evidencing Loans made by such Lender or registered assigns to the Company, substantially in the form of
Exhibit C.
“Notice Date” has the meaning specified in Section 2.18(a).
20
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the
Company 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 the
Company of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Operating Lease and Rental Expense” means, for any period, all operating lease expense and all other
rental expense incurred by the Company and its Subsidiaries during such period but shall exclude lease
termination expenses and lease exit costs (whether accounted for as restructuring costs, lease expense or
otherwise) incurred during such period.
“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 Rate Early Opt-in
”
means the Administrative Agent and the Company have elected to replace
LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (1) an Early Opt-in Election
and (2) Section 3.03(c)(ii) and paragraph (2) of the definition of “Benchmark Replacement”.
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or
similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement
or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any
Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment
(other than an assignment made pursuant to Section 3.06).
21
“Outstanding Amount” means (a) with respect to Loans (other than Swing Line Loans) on any date, the
US Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Committed Loans occurring on such date, (b) with respect
to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Swing Line Loans occurring on such date, and (c) with
respect to any L/C Obligations on any date, the US Dollar Equivalent of the aggregate outstanding 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 changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements by the Company of Unreimbursed Amounts.
“Overnight Rate” means, for any day, with respect to any amount, the greater of (i) the Federal Funds
Rate and (ii) an overnight rate determined by the Administrative Agent, the applicable L/C Issuer, or the Swing
Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation.
“Participant” has the meaning specified in Section 10.06(e).
“Participant Register” has the meaning specified in Section 10.06(e).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required
contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set
forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code
and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432
and 436 of the Code and Sections 302, 303, 304 and 305 of 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.
“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 the Pension Funding Rules or Title IV of
ERISA, the Company or any ERISA Affiliate.
“Platform” has the meaning specified in Section 6.02.
22
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any
such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 6.02.
“Rescindable Amount” has the meaning as defined in Section 2.12(b)(ii).
“Recipient” means the Administrative Agent, any Lender, any L/C Issuer and the Swing Line Lender.
“Register” has the meaning specified in Section 10.06(d).
“Registered Public Accounting Firm” has the meaning specified in the Securities Laws and will be
independent of the Company as prescribed by the Securities Laws.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors,
officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and
of such Person’s Affiliates.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the
Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors
of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“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, conversion or continuation of
Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the
Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of each L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, 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 and Swing Line Loans being deemed “held” by such
Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender will be excluded for purposes of making a
determination of Required Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK Resolution Authority.
“Response Deadline” has the meaning specified in Section 2.18(b).
23
“Responsible Officer” means each and any of the chief executive officer, president, chief operating
officer, executive vice president and chief financial officer, executive vice president, general counsel and
secretary, or the vice president and treasurer of the Company and, solely for purposes of notices given pursuant
to Article II, any other officer of the Company so designated by any of the foregoing officers in a notice to the
Administrative Agent or any other officer or employee of the Company designated in or pursuant to an
agreement between the Company and the Administrative Agent. Any document delivered hereunder that is
signed by a Responsible Officer of the Company will be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of the Company and such Responsible Officer
will be conclusively presumed to have acted on behalf of the Company.
“S&P” means Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc. and any
successor thereto.
“Same Day Funds” means, with respect to disbursements and payments in US Dollars, immediately
available funds.
“Sanction(s)” means any international economic sanction administered or enforced by the United States
Government (including without limitation, OFAC), the United Nations Security Council, the European Union,
Her Majesty’s Treasury, the Canadian Government, or other relevant sanctions authority.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to
any of its principal functions.
“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934, the Sarbanes-
Oxley Act of 2002 and the applicable accounting and auditing principles, rules, standards and practices
promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as
each of the foregoing may be amended and in effect on any applicable date hereunder.
“SOFR Early Opt-in
”
means the Administrative Agent and the Company have elected to replace LIBOR
pursuant to (1) an Early Opt-in Election and (2) Section 3.03(c)(i) and paragraph (1) of the definition of
“Benchmark Replacement”.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or
other business entity of which a majority of the shares of securities or other interests having ordinary voting
power for the election of directors or other governing body (other than securities or interests having such power
only by reason of the happening of a contingency) are at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” will 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
24
transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including
any options 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 mark-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) or any third party in the business of
determining such values acceptable to the Administrative Agent.
“Swing Line” means the revolving credit facility made available by the Swing Line Lender pursuant to
Section 2.05.
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.05.
“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any
successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.05(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which
will be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent
(including any form on an electronic platform or electronic transmission system as shall be approve by the
Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.
“Swing Line Sublimit” means an amount equal to the lesser of (a) $75,000,000 and (b) the Aggregate
Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
“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).
25
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including
backup withholdings), assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means, for the applicable corresponding tenor (or if any Available Tenor of a Benchmark
does not correspond to an Available Tenor for the applicable Benchmark Replacement, the closest
corresponding Available Tenor and if such Available Tenor corresponds equally to two Available Tenors of the
applicable Benchmark Replacement, the corresponding tenor of the shorter duration shall be applied), the
forward-looking term rate based on SOFR that has been selected or recommended by the Relevant
Governmental Body.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Type” means with respect to a Loan (other than a Swing Line Loan), its character as a Base Rate Loan or
a Eurocurrency Rate Loan.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA
Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation
Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time)
promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority
having responsibility for the resolution of any UK Financial Institution.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.04(c)(i).
“US Dollar” and “$” mean lawful money of the United States.
“US Dollar Equivalent” means, at any time, with respect to any amount denominated in US Dollars, such
amount.
“U.S. Bank” means U.S. Bank National Association and its successors.
“U.S. Bank Fee Letter” means the letter agreement dated August 24, 2021, between the Company and
U.S. Bank.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the
Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).
26
“Wells Fargo” means Wells Fargo Bank, N.A. and its successors.
“Wells Fargo Fee Letter” means the letter agreement, dated August 24, 2021, among the Company, Wells
Fargo and WFS.
“WFS” means Wells Fargo Securities, LLC and its successors.
“Write-Down and Conversion Powers” means, (a) 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, and (b) with respect to the United Kingdom, any powers of the applicable
Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of
any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part
of that liability into shares, securities or obligations of that person or any other person, to provide that any such
contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in
respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any
of those powers.
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 definitions of terms herein will apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun will include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” will be deemed to be
followed by the phrase “without limitation.” The word “will” will be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to
any agreement, instrument or other document (including any Organization Document) will be construed as
referring to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications set
forth herein or in any other Loan Document), (ii) any reference herein to any Person will be construed to
include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,”
and words of similar import when used in any Loan Document, will be construed to refer to such Loan
Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules will be construed to refer to Articles and Sections
of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference
to any law will include all statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation will, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” will be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
27
(b) 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.”
(c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and will not affect the interpretation of this Agreement or any other Loan Document.
(d) Any reference herein to a merger, amalgamation, consolidation, assignment, sale, disposition or
transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an
allocation of assets to a series of a limited liability company (or the unwinding of such a division or
allocation), as if it were a merger, amalgamation, consolidation, assignment, sale, disposition or transfer,
or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company
shall constitute a separate Person hereunder (and each division of any limited liability company that is a
Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
1.03
Accounting Terms
.
(a) Generally. All accounting terms not specifically or completely defined herein
will be construed in conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement will 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. Notwithstanding
the foregoing, for purposes of determining compliance with any covenant (including the computation of any
financial covenant) contained herein, Indebtedness of the Company and its Subsidiaries will be deemed to be
carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial
liabilities shall be disregarded.
(b) Changes in GAAP. If at any time any change in GAAP or any changes in accounting principles or
practices from those used in the preparation of the financial statements are hereafter occasioned by the
promulgation of rules, regulations, pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or any successor thereto or agencies
with similar functions), which results in a material change in the method of accounting in the financial
statements required to be furnished to the Administrative Agent hereunder or in the calculation of financial
covenants, standards or terms contained in this Agreement, and either the Company or the Required Lenders
will so request, the Administrative Agent, the Lenders and the Company will 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); provided that, until so amended, (i) such ratio or requirement will continue
to be computed in accordance with GAAP prior to such change therein and (ii) the Company will 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. Without limiting the foregoing, leases
shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited
Financial Statements for all purposes of this Agreement notwithstanding any change in GAAP relating thereto,
unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided
for above.
28
1.04
Times of Day
.
Unless otherwise specified, all references herein to times of day will be references to
Pacific time (daylight or standard, as applicable).
1.05
Letter of Credit Amounts
.
Unless otherwise specified herein, the amount of a Letter of Credit at any
time will be deemed to be the US Dollar Equivalent of the stated amount of such Letter of Credit in effect at
such time; provided, however, 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 will be deemed to be the US Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is
in effect at such time.
1.06
Rounding
.
Any financial ratios 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).
1.07
Interest Rates
.
The Administrative Agent does not warrant, nor accept responsibility, nor shall the
Administrative Agent have any liability with respect to the administration, submission or any other matter
related to the rates in the definition of “Eurocurrency Rate” or with respect to any rate (including, for the
avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or
replacement for or successor to any such rate or the effect of any of the foregoing, or of any Benchmark
Replacement Conforming Changes.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
Committed Loans
.
Subject to the terms and conditions set forth herein, each Lender severally agrees
to make loans (each such loan, a “Committed Loan”) to the Company in US Dollars from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the
amount of such Lender’s Commitment; provided, however, that after giving effect to any Committed
Borrowing, (a) the Total Outstandings will not exceed the Aggregate Commitments, and (b) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans will not exceed such Lender’s Commitment. Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the Company may borrow under
this Section 2.01, prepay under Section 2.06, and reborrow under this Section 2.01. Committed Loans may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
29
2.02
Borrowings, Conversions and Continuations of Loans.
(a) Each Committed Borrowing, each conversion of Loans (other than Swing Line Loans) from one Type
to the other, and each continuation of Eurocurrency Rate Loans will be made upon the Company’s irrevocable
notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed Loan Notice;
provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a
Committed Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not
later than 10:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans or of any conversion of Eurocurrency Rate Loans to Base Rate Loans,
and (ii) on the requested date of any Borrowing of Base Rate Loans; provided, however, that if the Company
wishes to request Eurocurrency Rate Loans having an Interest Period other than one, three or six months in
duration as provided in the definition of “Interest Period”, the applicable notice must be received by the
Administrative Agent not later than 10:00 a.m. four Business Days prior to the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans, whereupon the Administrative Agent will
give prompt notice to the Lenders of such request and determine whether the requested Interest Period is
acceptable to all of them. Not later than 10:00 a.m., three Business Days before the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans, the Administrative Agent will notify the
Company (which notice may be by telephone) whether or not the requested Interest Period has been consented
to by all the Lenders. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans will be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in
Sections 2.04(c) and 2.05(c), each Committed Borrowing of or conversion to Base Rate Loans will be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
will specify (i) whether the Company is requesting a Committed Borrowing, a conversion of Loans (other than
Swing Line Loans) from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which will be a Business Day), (iii) the
principal amount of Loans (other than Swing Line Loans) to be borrowed, converted or continued, (iv) the Type
of Loans (other than Swing Line Loans) to be borrowed or to which existing Loans (other than Swing Line
Loans) are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the
Company fails to specify a Type of Loan in a Committed Loan Notice, then the applicable Loans will be made
as Base Rate Loans. If the Company fails to give timely notice requesting a conversion or continuation of a
Eurocurrency Rate Loan, such Eurocurrency Rate Loan will be continued with an Interest Period of one month.
If the Company requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent will promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the Administrative Agent will notify each Lender of the
details of any continuation of Loans, as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender will make the amount of its Committed Loan available to the Administrative Agent in
Same Day Funds at the Administrative Agent’s Office not later than 12:00 p.m., on the Business Day
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specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent will
make all funds so received available to the Company in like and same day funds as received by the
Administrative Agent either by (i) crediting the account of such Company on the books of Bank of America
with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the Company; provided, however, that
if, on the date the Committed Loan Notice with respect to such Borrowing denominated in US Dollars is given
by the Company, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, will be
applied to the payment in full of any such L/C Borrowings, and, second, will be made available to the Company
as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only
on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of a Default, no
Loans may be requested as, converted to or continued as Eurocurrency Rate Loans without the consent of the
Required Lenders.
(d) The Administrative Agent will promptly notify the Company and the Lenders of the interest rate
applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any
time that Base Rate Loans are outstanding, the Administrative Agent will notify the Company and the Lenders
of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public
announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of Loans (other than Swing Line
Loans) from one Type to the other, and all continuations of Loans (other than Swing Line Loans) as the same
Type, there will not be more than ten
Interest Periods in effect with respect to Loans (other than Swing Line
Loans).
2.03
[Reserved.]
2.04
Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon
the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of
Credit denominated in US Dollars for the account of the Company, and to amend or extend Letters of
Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under
the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the
account of the Company and any drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (v) the L/C Obligations issued by and owing to any L/C
Issuer shall not exceed its L/C Commitment, (x) the Total Outstandings will not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
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Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s
Commitment, and (z) the Outstanding Amount of the L/C Obligations will not exceed the Letter of Credit
Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit will be
deemed to be a representation by the Company that the L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject
to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit will be fully
revolving, and accordingly the Company 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. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer will issue any Letter of Credit, if:
(A) subject to Section 2.04(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; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved such expiry date.
(iii) No L/C Issuer will be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator will by its
terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law
applicable to such L/C Issuer or any request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over such L/C Issuer will prohibit, or request
that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or will impose upon such L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or will impose upon such L/C Issuer any
unreimbursed loss, cost or expense that was not applicable on the Closing Date and which such
L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate any one or more of only those
policies of such L/C Issuer that do not conflict with the express terms of this Agreement;
(C) such Letter of Credit is to be denominated in a currency other than US Dollars; or
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(D) any Lender is at that time a Defaulting Lender, unless the Company Cash Collateralizes
such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv))
with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be
issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual
or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) No L/C Issuer will amend any Letter of Credit if such L/C Issuer would not be permitted at such
time to issue such Letter of Credit in its amended form under the terms hereof.
(v) No L/C Issuer will be under any obligation to amend any Letter of Credit if (A) such 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.
(vi) Each L/C Issuer will act on behalf of the Lenders with respect to any Letters of Credit issued by
it and the documents associated therewith, and each L/C Issuer will 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 such 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 such L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to such L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Subject to the terms of this Agreement, the Company may choose at its discretion which L/C
Issuer will issue a particular Letter of Credit hereunder. Each Letter of Credit will be issued or amended,
as the case may be, upon the request of the Company delivered to the requested 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 the Company. Such Letter of Credit Application may be sent by
telecopy, facsimile, United States mail, overnight courier, electronic transmission using the system
provided by the applicable L/C Issuer, personal delivery or any other means acceptable to such L/C Issuer.
Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative
Agent not later than 10:00 a.m. at least two Business Days (or such later date and time as the
Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application will specify in form and detail
satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which will be a Business Day); (B) the amount thereof; (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; (G) the purpose and nature of the requested Letter of Credit; and (H) such
33
other matters as such L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application will specify in form and detail satisfactory
to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which will be a Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as such L/C Issuer may require. Additionally, the Company will furnish to the applicable 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 such L/C Issuer or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable 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 Company and, if not, such L/C Issuer will provide the
Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice
from any Lender, the Administrative Agent or the Company, 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 will not then be satisfied, then, subject to the terms and conditions
hereof, such L/C Issuer will, on the requested date, issue a Letter of Credit for the account of the Company
or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C
Issuer’s usual and customary business practices and will report such issuance to the Administrative Agent,
in a format acceptable to the Administrative Agent. Immediately upon the issuance of each Letter of
Credit, each Lender will be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the
product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of Credit Application, the applicable 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 such 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
applicable L/C Issuer, the Company will not be required to make a specific request to such L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders will be deemed
to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter
of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that such L/C Issuer will not permit any such extension if (A) such 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 2.04(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on
or before the day that is seven Business Days before the Non-Extension
34
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 Lender or the Company that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing such
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 applicable L/C Issuer will also deliver
to the Company and the Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(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 applicable L/C Issuer, within the period stipulated by terms and conditions of Letter
of Credit, examine the drawing documents. After such examination and provided the drawing documents
are compliant, the LC Issuer will notify the Company and the Administrative Agent thereof. Not later than
10:00 a.m. on the date of any payment by any L/C Issuer under a Letter of Credit to be reimbursed in US
Dollars, (the “Honor Date”), the Company will reimburse such L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the Company fails to so reimburse the
applicable L/C Issuer by such time, the Administrative Agent will promptly notify each Lender of the
Honor Date, the amount of the unreimbursed drawing (expressed in US Dollars) (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Company
will be deemed to have requested a Committed 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 Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the Administrative
Agent pursuant to this Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation will not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender will upon any notice pursuant to Section 2.04(c)(i) make funds available (and the
Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the
applicable L/C Issuer, in US Dollars, at the Administrative Agent’s Office for US Dollar-denominated
payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than
12:00 noon on the Business Day specified in such notice by the Administrative Agent, whereupon, subject
to the provisions of Section 2.04(c)(iii), each Lender that so makes funds available will be deemed to have
made a Base Rate Loan to the Company in such amount. The Administrative Agent will remit the funds so
received to the applicable L/C Issuer in US Dollars.
35
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed
Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for
any other reason, the Company will be deemed to have incurred from the applicable L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing
will be due and payable on demand (together with interest) and will bear interest at the Default Rate. In
such event, each Lender’s payment to the Administrative Agent for the account of the applicable L/C
Issuer pursuant to Section 2.04(c)(ii) will be deemed payment in respect of its participation in such L/C
Borrowing and will constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.04.
(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.04(c) to
reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of
such Lender’s Applicable Percentage of such amount will be solely for the account of such L/C Issuer.
(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.04(c),
will be absolute and unconditional and will not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer,
the Company, any Subsidiary 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, however, that each Lender’s obligation to make Committed Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the
Company of a Committed Loan Notice). No such making of an L/C Advance will relieve or otherwise
impair the obligation of the Company to reimburse an L/C Issuer for the amount of any payment made by
such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of the
applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(ii), then, without limiting the other
provisions of this Agreement, such L/C Issuer will be entitled to recover from such 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 such L/C Issuer at
a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance
in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (vi) will be conclusive absent manifest error.
36
(d) Repayment of Participations.
(i) At any time after any L/C Issuer has made a payment under any Letter of Credit and has received
from any Lender such Lender’s L/C Advance in respect of such payment in accordance with
Section 2.04(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly from the Company or
otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in US 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 any L/C Issuer pursuant
to Section 2.04(c)(i) is required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Lender will
pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage 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 Lender, at a rate per annum equal to the applicable Overnight Rate from time
to time in effect. The obligations of the Lenders under this clause will survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Obligations Absolute.
The obligation of the Company to reimburse the applicable L/C Issuer for each
drawing under each Letter of Credit and to repay each L/C Borrowing will be absolute, unconditional and
irrevocable, and will 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 the Company or any
Subsidiary 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), such 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) waiver by such L/C Issuer of any requirement that exists for such L/C Issuer’s protection and
not the protection of the Company or any waiver by such L/C Issuer which does not in fact materially
prejudice the Company;
37
(v) honor of a demand for payment presented electronically even if such Letter of Credit requires
that demand be in the form of a draft;
(vi) any payment made by such L/C Issuer in respect of an otherwise complying item presented after
the date specified as the expiration date of, or the date by which documents must be received under, such
Letter of Credit if presentation after such date is authorized by the UCC or the ISP, as applicable;
(vii) any payment by such 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
such 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 beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(viii) 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, the Company or any Subsidiary.
The Company will promptly examine a copy of each Letter of Credit and each amendment thereto that is
delivered to it and, in the event of any claim of noncompliance with the Company’s instructions or other
irregularity, the Company will immediately notify the applicable L/C Issuer. The Company will be conclusively
deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such
notice is given as aforesaid.
(f) Role of L/C Issuer.
Each Lender and the Company agree that, in paying any drawing under a Letter of
Credit, no L/C Issuer will have any responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the 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 Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant
or assignee of any L/C Issuer will be liable to any 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. The Company hereby assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and will not,
preclude the Company’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 Issuers, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of any L/C Issuer will be liable or responsible for
any of the matters described in clauses (i) through (viii) of Section 2.04(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Company may have a claim against an L/C Issuer, and such
L/C Issuer may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to
38
special, punitive, consequential or exemplary, damages suffered by the Company which the Company proves
were caused by such L/C Issuer’s willful misconduct or gross negligence or such 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 a Letter of Credit.
In furtherance and not in limitation of the
foregoing, each 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 no L/C Issuer will 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 rights or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason. Each L/C Issuer may send a Letter of Credit or conduct any
communication to or from the beneficiary via the Society for Worldwide Interbank Financial
Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of
communicating with a beneficiary.
(g) Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Company
when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the
rules of the ISP will apply to each Letter of Credit issued by such L/C Issuer. Notwithstanding the foregoing, an
L/C Issuer shall not be responsible to the Company for, and such L/C Issuer’s rights and remedies against the
Company shall not be impaired by, any action or inaction of such L/C Issuer required or permitted under any
law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement,
including the Law or any order of a jurisdiction where such L/C Issuer or the beneficiary is located, the practice
stated in the ISP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the
ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services
Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter
of Credit chooses such law or practice.
(h) Letter of Credit Fees. The Company will pay to the Administrative Agent for the account of each
Lender in accordance with its Applicable Percentage, in US Dollars,
a Letter of Credit fee (the “Letter of Credit
Fee”)
for each Letter of Credit equal to the Applicable Rate times the US Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit; provided, however, any Letter of Credit Fees otherwise
payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting
Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer pursuant to this Section 2.04
shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with
the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to
Section 2.17(a)(iv), with the balance of such fee, if any, payable to the applicable L/C Issuer for its own
account. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit will be determined in accordance with Section 1.05. Letter of Credit Fees will
be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in
the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit will
be computed and multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, while any Event of
Default exists, all Letter of Credit Fees will accrue at the Default Rate.
39
(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Company will pay
directly to the applicable L/C Issuer for its own account, in US Dollars, a fronting fee with respect to each Letter
of Credit issued by such L/C Issuer at the rate per annum specified in the Fee Letter between such L/C Issuer
and the Company, computed on the US Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit on a quarterly basis in arrears. Such fronting fee will be due and payable on the tenth Business
Day after the end of each March, June, September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit will be determined in accordance with Section 1.05. In addition, the Company will pay directly
to the applicable L/C Issuer for its own account, in US Dollars, the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of such 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.
(j) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of
any Issuer Document, the terms hereof will control.
(k) L/C Issuer Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent,
each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section 2.04, provide
the Administrative Agent a Letter of Credit Report, as set forth below:
(i) reasonably prior to the time that such L/C Issuer issues, amends, renews, increases or extends a
Letter of Credit, the date of such issuance, amendment, renewal, increase or extension and the stated
amount of the applicable Letters of Credit after giving effect to such issuance, amendment, renewal or
extension (and whether the amounts thereof shall have changed);
(ii) on each Business Day on which such L/C Issuer makes a payment pursuant to a Letter of Credit,
the date and amount of such payment;
(iii) on any Business Day on which the Company fails to reimburse a payment made pursuant to a
Letter of Credit required to be reimbursed to such L/C Issuer on such day, the date of such failure and the
amount of such payment;
(iv) on any other Business Day, such other information as the Administrative Agent shall reasonably
request as to the Letters of Credit issued by such L/C Issuer; and
40
(v) for so long as any Letter of Credit issued by an L/C Issuer is outstanding, such L/C Issuer shall
deliver to the Administrative Agent (A) on the last Business Day of each calendar month, (B) at all other
times a Letter of Credit Report is required to be delivered pursuant to this Agreement, and (C) on each
date that (1) an L/C Credit Extension occurs or (2) there is any expiration, cancellation and/or
disbursement, in each case, with respect to any such Letter of Credit, a Letter of Credit Report
appropriately completed with the information for every outstanding Letter of Credit issued by such L/C
Issuer.
2.05
Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in
reliance upon the agreements of the other Lenders set forth in this Section 2.05, will make loans in US Dollars
(each such loan, a “Swing Line Loan”) to the Company from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage
of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Commitment; provided, however, that (x) after giving effect
to any Swing Line Loan, (i) the Total Outstandings will not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Commitment, (y) the Company
will not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (z) the
Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which
determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension will
have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Company may borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05.
Each Swing Line Loan will be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each
Lender will be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s
Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing will be made upon the Company’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by
a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such Swing Line Loan
Notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 noon on
the requested borrowing date, and will specify (i) the amount to be borrowed, which will be a minimum of
$500,000 or a whole multiple of $100,000 in excess thereof, and (ii) the requested borrowing date, which will be
a Business Day. Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing
Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent (including at the request of
41
any Lender) prior to 1:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line
Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.05(a), or (B) that one or more of the applicable conditions specified in Article IV is not
then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 2:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Company.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of
the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of
the amount of Swing Line Loans then outstanding. Such request will be made in writing (which written
request will be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.02. The Swing Line Lender will furnish the Company with a copy
of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Lender will make an amount equal to its Applicable Percentage of the amount specified in
such Committed Loan Notice available to the Administrative Agent in Same Day Funds (and the
Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line
Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office for US Dollar-
denominated payments not later than 12:00 noon on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.05(c)(ii), each Lender that so makes funds available will be deemed to
have made a Base Rate Loan to the Company in such amount. The Administrative Agent will remit the
funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in
accordance with Section 2.05(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender
as set forth herein will be deemed to be a request by the Swing Line Lender that each of the Lenders fund
its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative
Agent for the account of the Swing Line Lender pursuant to Section 2.05(c)(i) will be deemed payment in
respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing
Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.05(c) by the time specified in Section 2.05(c)(i), the Swing Line Lender will be entitled to
recover from such 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 Swing Line Lender at a rate per annum equal to the applicable Overnight
Rate from time to time in effect, plus any administrative, processing
42
or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid will constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) will
be conclusive absent manifest error.
(iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations
in Swing Line Loans pursuant to this Section 2.05(c) will be absolute and unconditional and will not be
affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Company 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, however, that each Lender’s
obligation to make Committed Loans pursuant to this Section 2.05(c) is subject to the conditions set forth
in Section 4.02. No such funding of risk participations will relieve or otherwise impair the obligation of
the Company to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan,
if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which such Lender’s risk participation
was funded) in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any
Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Lender will pay to the Swing Line Lender its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under
this clause will survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender will be responsible for invoicing
the Company for interest on the Swing Line Loans. Until each Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.05 to refinance such Lender’s Applicable Percentage of any Swing Line
Loan, interest in respect of such Applicable Percentage will be solely for the account of the Swing Line Lender.
43
(f) Payments Directly to Swing Line Lender. The Company will make all payments of principal and
interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.06
Prepayments
.
(a) The Company may, upon notice from it to the Administrative Agent, at any time or
from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty;
provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the
Administrative Agent not later than 10:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans, and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of
Eurocurrency Rate Loans will be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof; and (iii) any prepayment of Base Rate Loans will be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice will specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans; provided
that, if a notice of prepayment is given in connection with a conditional notice of termination of the Aggregate
Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.07. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such
prepayment. If such notice is given by the Company, it will make such prepayment and the payment amount
specified in such notice will be due and payable on the date specified therein. Any prepayment of a
Eurocurrency Rate Loan will be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment will be applied to the Loans of the
Lenders in accordance with their respective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent),
at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 12:00 noon on the date of the prepayment, and (ii) any such prepayment will be in a minimum
principal amount of $100,000. Each such notice will specify the date and amount of such prepayment. If such
notice is given by the Company, the Company will make such prepayment and the payment amount specified in
such notice will be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time
exceed the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice,
the Company will prepay Loans and/or the Company will Cash Collateralize the L/C Obligations in an
aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to
exceed 100% of the Aggregate Commitments then in effect; provided, however, that, subject to the provisions of
Section 2.17(a)(ii), the Company will not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.06(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate
Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial
deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against
the results of further exchange rate fluctuations.
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2.07
Termination or Reduction of Commitments
.
The Company may, upon notice to the Administrative
Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate
Commitments; provided that (i) any such notice will be received by the Administrative Agent not later than
10:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction will
be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Company will not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, unless
the Total Outstandings consist solely of the Outstanding Amount of L/C Obligations and the Company has
concurrently Cash Collateralized the Outstanding Amount of L/C Obligations, and (iv) if, after giving effect to
any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds
the amount of the Aggregate Commitments, such sublimit will be automatically reduced by the amount of such
excess. A notice of termination of the Aggregate Commitments delivered by the Company pursuant to this
Section 2.07 may state that such notice is conditioned on the effectiveness of other credit facilities or the
availability of a source of funds for the prepayment in full of the Obligations under this Agreement, in which
case, such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate Commitments. Except as otherwise set
forth above, the amount of any such Aggregate Commitment reduction will not be applied to the Letter of Credit
Sublimit or the Swing Line Sublimit unless otherwise specified by the Company. Any reduction of the
Aggregate Commitments will be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments will be
paid on the effective date of such termination.
2.08
Repayment of Loans
.
(a) The Company will repay to the Lenders on the Maturity Date the aggregate
principal amount of Committed Loans made to it outstanding on such date.
(b) The Company will repay each Swing Line Loan on the earlier to occur of (i) the date ten Business
Days after such Loan is made and (ii) the Maturity Date. At any time that there shall exist a Defaulting Lender,
immediately upon the request of the Swing Line Lender, the Company shall repay the outstanding Swing Line
Loans made by the Swing Line Lender in an amount sufficient to eliminate any Fronting Exposure in respect of
such Swing Line Loans.
2.09
Interest
.
(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan will
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the
Eurocurrency Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan will 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; and (iii) each Swing Line Loan will 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.
45
(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, such amount will 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 Laws.
(ii) If any amount (other than principal of any Loan) payable by the Company under any Loan
Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount will
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 Laws.
(iii) While any Event of Default exists, the Company will 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 Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) will be
due and payable upon demand.
(c) Interest on each Loan will 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 will 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 subsections (h) and (i) of Section 2.04:
(a) Facility Fee. The Company will pay to the Administrative Agent for the account of each Lender in
accordance with its Applicable Percentage, a facility fee (the “Facility Fee”) in US Dollars equal to the
Applicable Rate times the actual daily amount of the Aggregate Commitments (or, if the Aggregate
Commitments have terminated, on the Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations), regardless of usage, subject to adjustment as provided in Section 2.17. The Facility Fee will accrue
at all times during the Availability Period (and thereafter so long as any Loans, Swing Line 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 will 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 Closing Date, and on the
Maturity Date (and, if applicable, thereafter on demand). The Facility Fee will be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the actual daily amount will 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 Company will pay to the Arrangers and the Administrative Agent for their own
respective accounts, in US Dollars, fees in the amounts and at the times specified in the Fee Letters. Such fees
will be fully earned when paid and will not be refundable for any reason whatsoever.
46
(ii) The Company will pay to the Lenders, in US Dollars, such fees as will have been separately agreed
upon in writing in the amounts and at the times so specified. Such fees will be fully earned when paid and will
not be refundable for any reason whatsoever.
2.11
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All computations
of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate)
will be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest will 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 will accrue on each Loan for the day on which the Loan is made, and will 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 will, subject to Section 2.13(a), bear interest for one day. Each determination
by the Administrative Agent of an interest rate or fee hereunder will be conclusive and binding for all purposes,
absent manifest error.
(b) If, as a result of any restatement of or other adjustment to the financial statements of the Company or
for any other reason, the Company or the Lenders determine that (i) the Consolidated Fixed Charge Coverage
Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a proper calculation of the
Consolidated Fixed Charge Coverage Ratio would have resulted in higher pricing for such period, the Company
will immediately and retroactively be obligated to pay to the Administrative Agent for the account of the
applicable Lenders or the applicable L/C Issuer, as the case may be, promptly on demand by the Administrative
Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Company
under the Bankruptcy Code of the United States, automatically and without further action by the Administrative
Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that
should have been paid for such period over the amount of interest and fees actually paid for such period;
provided that, in the event the Company disagrees with the Lenders’ determination that such calculation would
have resulted in higher pricing, then such disagreement will be resolved by an independent calculation of a
Registered Public Accounting Firm of a nationally recognized standing. This paragraph shall not limit the rights
of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Section 2.04(c)(iii),
2.04(h) or 2.09(b) or under Article VIII. The Company’s obligations under this paragraph will survive the
termination of the Aggregate Commitments and the repayment of all other Obligations hereunder for a period of
one (1) year from the date of such termination.
2.12
Evidence of Debt
.
(a) The Credit Extensions made by each Lender will 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 and each Lender will be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders to the Company and the
interest and payments thereon. Any failure to so record or any error in doing so will not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing with respect to the
Obligations. The Administrative Agent will provide to the Company, upon its request, a statement of Loans,
payments and other transactions pursuant to this Agreement. Such statement will be deemed correct, accurate,
and binding on the Company (except for corrections and errors
47
discovered by the Administrative Agent), unless the Company notifies the Administrative Agent in writing to
the contrary within thirty (30) days after such statement is rendered. In the event a timely written notice of
objections is given by the Company, only the items to which exception is expressly made will be considered to
be disputed by the Company. 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 will control in the absence of manifest error. Upon the request of any
Lender to the Company made through the Administrative Agent, the Company will execute and deliver to such
Lender (through the Administrative Agent) a Note, which will evidence such Lender’s Loans to the Company in
addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date,
Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent will maintain in accordance with its usual practice accounts or records evidencing the
purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. 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 will
control in the absence of manifest error.
2.13
Payments Generally; Administrative Agent’s Clawback
.
(a) General. All payments to be made by the
Company will be made without condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Company hereunder will 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 US Dollars and in Same Day Funds not later than 1:00 p.m. on the
date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (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 after 1:00 p.m.
will be deemed received on the next succeeding Business Day and any applicable interest or fee will continue to
accrue. If any payment to be made by the Company will come due on a day other than a Business Day, payment
will be made on the next following Business Day, except (i) as otherwise set forth in the definition of Interest
Period, or (ii) that no payment will extend past the Maturity Date or the end of the Availability Period.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent will
have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurocurrency
Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 11:00 a.m. on the date of
such Committed Borrowing) that such Lender will not make available to the Administrative Agent such
Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed
Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the
time required by Section 2.02) and may, in reliance upon such assumption, make available to the Company a
corresponding amount. In such event, if a Lender has not in fact
48
made its share of the applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender and the Company severally agree 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 the Company to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing,
and (B) in the case of a payment to be made by the Company, the interest rate applicable to Base Rate Loans. If
the Company and such Lender will pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent will promptly remit to the Company the amount of such interest paid by the
Company for such period. If such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid will constitute such Lender’s Committed Loan included in such
Committed Borrowing. Any payment by the Company will be without prejudice to any claim the Company may
have against a Lender that will have failed to make such payment to the Administrative Agent.
(ii) Payments by the Company; Presumptions by Administrative Agent. Unless the Administrative Agent
shall have received notice from the Company prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or any L/C Issuer hereunder that the Company will not
make such payment, the Administrative Agent may assume that the Company has made such payment on such
date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the
applicable L/C Issuer, as the case may be, the amount due.
With respect to
any payment that
the Administrative Agent makes for the account of the Lenders or any
L/C Issuer hereunder as to which the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”)
: (1) the Company has not in fact made such payment; (2) the Administrative Agent has made a payment in
excess of the amount so paid by the Company (whether or not then owed); or (3) the Administrative agent has
for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable
Amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon,
for each day from and including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Company with respect to any amount owing
under this subsection (b) will 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 the Company as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Company 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 will return such funds (in like funds as received from such
Lender) to such Lender, without interest.
49
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund
participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) 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 will not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender will 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 10.04(c).
(e) Funding Source. Nothing herein will 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 will, 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 or in Swing Line Loans held by it resulting in such Lender’s receiving
payment of a proportion of the aggregate amount of such Loans or such participations and accrued interest
thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater
proportion will (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 and Swing Line Loans of the other Lenders,
or make such other adjustments as will be equitable, so that the benefit of all such payments will 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 will be rescinded and the
purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section will not be construed to apply to (x) any payment made by or on
behalf of the Company pursuant to and in accordance with the express terms of this Agreement (including
the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash
Collateral provided for in Section 2.16, or (z) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or
Swing Line Loans to any assignee or participant, other than an assignment or participation to the
Company or any Subsidiary thereof (as to which the provisions of this Section will apply).
For purposes of this Section 2.14, any calculation of
pro rata
shares of Loans will be determined on the
basis of the Outstanding Amount of all Loans (and each Lender’s participation in Swing Line Loans) and all
L/C Obligations (and each Lender’s participation therein) without distinction between Committed Loans and
Swing Line Loans.
50
The Company
consents to the foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the
Company rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Company in the amount of such participation.
2.15
Increase in Commitments.
(a) Request for Increase
.
Provided there exists no Default, upon notice to the Administrative Agent (which
will promptly notify the Lenders), the Company may from time to time
,
request an increase in the Aggregate
Commitments by an amount (for all such requests) not exceeding $1,000,000,000;
provided that any such
request for an increase will be in a minimum amount of $100,000,000. At the time of sending such notice, the
Company (in consultation with the Administrative Agent) will specify the time period within which each Lender
is requested to respond (which will in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).
(b) Lender Elections to Increase. Each Lender will notify the Administrative Agent within such time
period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater
than, or less than its Applicable Percentage of such requested increase. Any Lender not responding within such
time period will be deemed to have declined to increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders. The Administrative Agent will notify the
Company and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full
amount of a requested increase and subject to the approval of the Administrative Agent, each L/C Issuer and the
Swing Line Lender (which approvals will not be unreasonably withheld), the Company may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with this
Section, the Administrative Agent and the Company will determine the effective date (the “Increase Effective
Date”) and the final allocation of such increase. The Administrative Agent will promptly notify the Company
and the Lenders of the final allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, the Company will
deliver to the Administrative Agent a certificate dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of the Company (i) certifying and attaching the resolutions
adopted by the Company approving or consenting to such increase, and (ii) certifying that, before and after
giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 will be
51
deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, and (B) no Default exists. The Company will prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising
from any nonratable increase in the Commitments under this Section.
(f) Conflicting Provisions. This Section will supersede any provisions in Sections 2.14 or 10.01 to the
contrary.
2.16
Cash Collateral.
(a) Certain Credit Support Events. (i) Upon the request of the Administrative Agent or the applicable L/C
Issuer (A) if such 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 that has not been paid within three (3) Business Days of notice of
such drawing as provided in Section 2.04(c), or (B) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Company shall, in each case, promptly, but in any event, if
such request is made by 1:00 p.m., on the same Business Day, and, if such request is made after 1:00 p.m., on
the next Business Day, Cash Collateralize the then Outstanding Amount of all L/C Obligations.
(ii) At any time that there shall exist a Defaulting Lender, upon the request of the Administrative
Agent or an L/C Issuer, the Company shall promptly, but in any event, if such request is made by 1:00
p.m., on the same Business Day, and, if such request is made after 1:00 p.m., on the next Business Day,
deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure
of such L/C Issuer (after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the
Defaulting Lender).
(iii) In addition, if the Administrative Agent notifies the Company at any time that the Outstanding
Amount of all L/C Obligations at such time exceeds the Letter of Credit Sublimit then in effect, then,
within two Business Days after receipt of such notice, the Company shall Cash Collateralize the L/C
Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C Obligations
exceeds the Letter of Credit Sublimit.
(iv) The Administrative Agent may, at any time and from time to time after the initial deposit of
Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results
of exchange rate fluctuations as reasonably determined by the Administrative Agent.
(b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject
to deposit) will be maintained in blocked, segregated interest-bearing deposit accounts (“Cash Collateral
Accounts”) at Bank of America (such interest to be for the account of the Company). The Company, and to the
extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control
of) the Administrative Agent, for the benefit of the Administrative Agent, each L/C Issuer and the Lenders
(including
52
the Swing Line Lender), and agrees to maintain, a first priority security interest in all such Cash Collateral
Accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all
proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.16(c). If at any time the Administrative Agent reasonably determines that Cash Collateral
is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the
total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured
thereby (including by reason of exchange rate fluctuations), the Company or the relevant Defaulting Lender
will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional
Cash Collateral in an amount sufficient to eliminate such deficiency.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral
provided under any of this Section 2.16 or Sections 2.04, 2.05, 2.06, 2.17 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line
Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting
Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or
other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or
other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable
Lender (or, as appropriate, its assignee following compliance with Section 10.06(c))) or (ii) upon the
Company’s request if there exists Cash Collateral in excess of the requirements of this Section 2.16; provided,
however, that Cash Collateral furnished by or on behalf of the Company shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this Section 2.16 may be
otherwise applied in accordance with Section 8.03).
2.17
Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender
becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent
permitted by applicable Law:
(i) Waivers and Amendments. That 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 Section 10.01.
(ii) Reallocation of Payments; Defaulting Lender Waterfall. Any payment of principal, interest, fees
or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts
made available to) the Administrative Agent by that Defaulting Lender pursuant to Section 10.08), 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 that Defaulting Lender to the
53
Administrative Agent hereunder;
second
, to the payment on a pro rata basis of any amounts owing by that
Defaulting Lender to the L/C Issuers or Swing Line Lender hereunder;
third
, if so determined by the
Administrative Agent or requested by any L/C Issuer or Swing Line Lender, to be held as Cash Collateral
for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit;
fourth
, as the Company may request (so long as no Default or Event of Default exists), to
the funding of any Loan in respect of which that Defaulting Lender has failed 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 non-interest bearing deposit account and released
in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement;
sixth
, to the
payment of any amounts owing to the Lenders, the L/C Issuers or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line
Lender against that Defaulting Lender as a result of that 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 the Company as a result of any judgment of a court of competent jurisdiction obtained
by the Company against that Defaulting Lender as a result of that Defaulting Lender’s breach of its
obligations under this Agreement; and
eighth
, to that Defaulting Lender or as otherwise directed by a court
of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any
Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate
share, and (y) such Loans or L/C Borrowings 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 L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis
prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender
until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line
Loans are held by the Lenders pro rata in accordance with the Commitments hereunder 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 that Defaulting Lender, and
each Lender irrevocably consents hereto.
(iii) Certain Fees. That Defaulting Lender (x) shall be entitled to receive any Facility Fee pursuant to
Section 2.10(a) for any period during which that Lender is a Defaulting Lender only to extent allocable to
the sum of (1) the Outstanding Amount of the Loans funded by it and (2) its Applicable Percentage of the
stated amount of Letters of Credit and Swing Line Loans for which it has provided Cash Collateral
pursuant to Section 2.04, Section 2.05, Section 2.16, or Section 2.17(a)(ii), as applicable (and the
Company shall (A) be required to pay to each of the L/C Issuers and the Swing Line Lender, as applicable,
the amount of such fee allocable to its Fronting Exposure arising from that Defaulting Lender and (B) not
be required to pay the remaining amount of such fee that otherwise would have been required to have been
paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as
provided in Section 2.04(h).
54
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in
which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each Non-
Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swing Line Loans
pursuant to Sections 2.04 and 2.05, the “Applicable Percentage” of each Non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided, that, (i) each such
reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender,
no Default or Event of Default exists; and (ii) the aggregate obligation of each Non-Defaulting Lender to
acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the
positive difference, if any, of (1) the Commitment of that Non-Defaulting Lender minus (2) the aggregate
Outstanding Amount of the Committed Loans of that Lender. Without limiting Section 10.19, 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) No Default. Operation of the allocations provided in clauses (ii) through (iv) above shall not be
deemed to result in a default of the Company’s obligations to a Defaulting Lender under this Agreement
or any other Loan Document.
(vi) Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(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 applicable Law, (x) first, prepay Swing Line Loans in an amount
equal to the Swing Line Lender’s Fronting Exposure and (y) second, Cash Collateralize each L/C Issuer’s
Fronting Exposure in accordance with the procedures set forth in Section 2.16.
(b) Defaulting Lender Cure. If the Company, the Administrative Agent, the Swing Line Lender and each
L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be 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), that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to
be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and
Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages
(without giving effect to Section 2.17(a)(iv)), together with any payments reasonably determined by the
Administrative Agent to be necessary to compensate the Non-Defaulting Lenders for any loss, cost or expense
of the type described in Section 3.05 (all of which purchases are hereby consented to by the Company and each
Lender) whereupon that 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.
55
2.18
Extension of Maturity Date.
(a) Requests for Extension. The Company may, not more than two times, by notice to the Administrative
Agent not earlier than 60 days and not later than 45 days prior to each anniversary of the date of this Agreement
(each such anniversary being a “Modification Date”) request that each Lender extend such Lender’s Maturity
Date for an additional year from the Maturity Date then in effect hereunder (the “Existing Maturity Date”). The
Administrative Agent shall promptly notify each Lender of the Company’s request for such extension (the date
such notice is given being referred to herein as the “Notice Date”).
(b) Lender Elections to Extend. Each Lender, acting in its sole and individual discretion, shall, by notice
to the Administrative Agent given not later than 30 days following the Notice Date, advise the Administrative
Agent whether or not such Lender agrees to such extension (and each Lender that determines not to so extend its
Maturity Date (a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after
such determination). Any Lender that does not so advise the Administrative Agent on or before the 30
th
day
following the Notice Date (the “Response Deadline”) shall be deemed to be a Non-Extending Lender. The
election of any Lender to agree to such extension shall not obligate any other Lender to so agree.
(c) Notification by Administrative Agent. The Administrative Agent shall notify the Company of each
Lender’s determination under this Section no later than the fifth Business Day after the Response Deadline.
(d) Additional Commitment Lenders. The Company shall have the right on or before a Non-Extending
Lender’s Existing Maturity Date to replace such Non-Extending Lender with, and add as “Lenders” under this
Agreement in place thereof, one or more Eligible Assignees (each, an “Additional Commitment Lender”) as
provided in Section 10.13, each of which Additional Commitment Lenders shall have entered into an
Assignment and Assumption pursuant to which each such Additional Commitment Lender shall, effective as of
the date of such Assignment and Assumption, undertake a Commitment (and, if any such Additional
Commitment Lender is already a Lender, its Commitment shall be in addition to such Lender’s Commitment
hereunder on such date).
(e) Minimum Extension Requirement. If (and only if) the total of the Commitments of the Lenders that
have agreed so to extend their Maturity Date and the additional Commitments of the Additional Commitment
Lenders that are in effect as of the Modification Date shall be more than 50% of the aggregate amount of the
Commitments in effect immediately prior to the applicable Modification Date, then, effective as of such
Modification Date, the Maturity Date of each Lender that is an extending lender and of each such Additional
Commitment Lender shall be extended to the date falling one year after the Existing Maturity Date (except that,
if such date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day)
and each such Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this
Agreement; provided that in the event the Commitment of a Non-Extending Lender is replaced after the
applicable Modification Date as provided in Section 2.18(d), then the Existing Maturity Date of such
Commitment shall also be extended, effective as of the effective date of the applicable Assignment and
Assumption, to the applicable Maturity Date. In the event of any such extension, the Commitment of each Non-
Extending Lender that has not been
56
replaced as provided in Section 2.18(d) shall terminate on the Existing Maturity Date in effect prior to any such
extension and the outstanding principal balance of all Loans and other amounts payable hereunder to such Non-
Extending Lender shall become due and payable on such Existing Maturity Date and the total Commitments of
the Lenders hereunder shall be reduced by the Commitments of the Non-Extending Lenders so terminated on
such Existing Maturity Date, provided that if that the Total Outstandings would, after giving effect to the
extension of the Maturity Date and the additional Commitments of the Additional Commitment Lenders, exceed
the Aggregate Commitments, the Company shall make necessary prepayments in accordance with
Section 2.06(c) prior to the effectiveness of the requested extension.
(f) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the extension of the
Maturity Date pursuant to this Section shall not be effective with respect to any Lender unless the Company
shall deliver to the Administrative Agent a certificate dated as of the applicable Modification Date signed by a
Responsible Officer of the Company certifying:
(i) no Default shall have occurred and be continuing on the date of such extension and after giving
effect thereto; and
(ii) the representations and warranties contained in this Agreement are true and correct on and as of
the date of such extension and after giving effect thereto, as though made on and as of such date (except to
the extent that such representations and warranties specifically refer to an earlier date, in which case they
are true and correct as of such earlier date).
(g) Conflicting Provisions. This Section shall supersede any provisions in Section 2.14 or 10.01 to the
contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01
Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of the Company hereunder or under any
other Loan Document shall be made without deduction or withholding for any Taxes, except as required
by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the
Administrative Agent or the Company) requires the deduction or withholding of any Tax from any such
payment by the Administrative Agent or the Company, then the Administrative Agent or the Company
shall be entitled to make such deduction or withholding, upon the basis of the information and
documentation to be delivered pursuant to subsection (e) below.
57
(ii) If the Company or the Administrative Agent shall be required by the Code to withhold or deduct
any Taxes, including both United States federal backup withholding and withholding taxes, from any
payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by
the Administrative Agent to be required based upon the information and documentation it has received
pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld
or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent
that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the
Company shall be increased as necessary so that after any required withholding or the making of all
required deductions (including deductions applicable to additional sums payable under this Section 3.01)
the applicable Recipient receives an amount equal to the sum it would have received had no such
withholding or deduction been made.
(iii) If the Company or the Administrative Agent shall be required by any applicable Laws other
than the Code to withhold or deduct any Taxes from any payment, then (A) the Company or the
Administrative Agent, as required by such Laws, shall withhold or make such deductions as are
determined by it to be required based upon the information and documentation it has received pursuant to
subsection (e) below, (B) the Company or the Administrative Agent, to the extent required by such Laws,
shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in
accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes, the sum payable by the Company shall be increased as necessary so that after any
required withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the
sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Company. Without limiting the provisions of subsection (a) above, the
Company shall timely pay to the relevant Governmental Authority in accordance with applicable Laws, or at the
option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnifications.
(i) The Company shall, and does hereby, indemnify each Recipient, and shall make payment in
respect thereof 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 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to
such Recipient, and any penalties, interest and 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 or any L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or any L/C Issuer, shall be conclusive
absent manifest error.
58
(ii) Each Lender and L/C Issuer shall, and does hereby, severally indemnify, and shall make
payment in respect thereof within 10 days after demand therefor, the Administrative Agent against (x) any
Indemnified Taxes attributable to such Lender or such L/C Issuer (but only to the extent that the Company
has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Company to do so), (y) any Taxes attributable to such Lender’s failure to comply with
the provisions of Section 10.06(e) relating to the maintenance of a Participant Register or as a result of the
failure by such Lender or such L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such Lender or such L/C
Issuer, as the case may be, to the Company or the Administrative Agent pursuant to Section 3.01(e), and
(z) any Excluded Taxes attributable to such Lender or such L/C Issuer, 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 and L/C Issuer hereby authorizes the Administrative Agent or the Company to set off and
apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under
this Agreement or any other Loan Document against any amount due to the Administrative Agent under
this clause (ii).
(d) Evidence of Payments. Upon request by the Company or the Administrative Agent, as the case may
be, after any payment of Taxes by the Company or by the Administrative Agent to a Governmental Authority as
provided in this Section 3.01, the Company shall deliver to the Administrative Agent or the Administrative
Agent shall deliver to the Company, as the case may be, the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such
payment or other evidence of such payment reasonably satisfactory to the Company or the Administrative
Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(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 to the Administrative Agent,
at the time or times reasonably requested by the Company or the Administrative Agent and at the time or
times prescribed by applicable Laws, such properly completed and executed documentation prescribed by
applicable Laws or the taxing authorities of a jurisdiction pursuant to such applicable Laws or 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
Laws 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 either (A) set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below or (B) required by
applicable Laws other than the Code or the taxing authorities of the jurisdiction pursuant to such
applicable Laws to comply with the requirements for exemption or reduction of withholding tax in that
jurisdiction) 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.
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(ii) Without limiting the generality of the foregoing, in the event that the Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative
Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the Company or the Administrative
Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S.
federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the
Company and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Company or the
Administrative Agent), whichever of the following is applicable:
(I) 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-E or IRS Form W-8BEN 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-E or IRS Form W-8BEN 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;
(II) executed originals of IRS Form W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form
of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company 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) properly
completed and executed originals of IRS Form W-8BEN-E or IRS Form W-8BEN; or
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(IV) 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-E, IRS Form
W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or
Exhibit F-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 F-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
Company and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Company or the
Administrative Agent), executed originals of any other form prescribed by applicable Laws 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 Laws to
permit the Company 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 Laws (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.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this
Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Company and the Administrative Agent in writing of its legal inability
to do so.
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(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative
Agent have any obligation to file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any
obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for
the account of such Lender or such L/C Issuer, as the case may be. If any Recipient determines, that it has
received a refund of any Taxes as to which it has been indemnified by the Company or with respect to which the
Company has paid additional amounts pursuant to this Section 3.01, it shall pay to the Company an amount
equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Company under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that the Company, upon the request of
the Recipient, agrees to repay the amount paid over to the Company (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay
such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no
event will the applicable Recipient be required to pay any amount to the Company pursuant to this subsection
the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient
would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such
Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its
tax returns (or any other information relating to its taxes that it deems confidential) to the Company or any other
Person.
(g) 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 or an L/C Issuer, the
termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
(h) Defined Terms. For purposes of this Section 3.01, the term “Lender” includes any L/C Issuer, and the
term “applicable Laws” includes FATCA.
3.02
Illegality
.
If any Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Loans whose interest is determined by reference to the Eurocurrency Rate, or to determine or charge
interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, US Dollars in the
applicable interbank market, then, on notice thereof by such Lender to the Company through the Administrative
Agent, (i) any obligation of such Lender to make or continue Eurocurrency Rate Loans in US Dollars or to
convert Base Rate Loans to Eurocurrency Rate Loans, will be suspended, and (ii) if such notice asserts the
illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by
reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of
such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without
reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist.
Upon receipt of such notice, (x) the Company will, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all such Eurocurrency Rate Loans of such Lender to
Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without
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reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (y) if
such notice asserts the illegality of such Lender determining or charging interest rates based upon the
Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate
applicable to such Lender without reference to the Eurocurrency Rate component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion,
the Company will also pay accrued interest on the amount so prepaid or converted.
3.03
Inability to Determine Rates.
(a) If in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation
thereof, (i) the Administrative Agent determines that (A) deposits are not being offered to banks in the
applicable offshore interbank eurodollar market for such currency for the applicable amount and Interest Period
of such Eurocurrency Rate Loan, or (B) (x) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan or in
connection with an existing or proposed Base Rate Loan and (y) the circumstances described in
Section 3.03(c)(i) do not apply (in each case with respect to this clause (i), “Impacted Loans”), or (ii) the
Administrative Agent or the affected Lenders determine that for any reason the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will
promptly so notify the Company and each Lender. Thereafter, (x) the obligation of the Lenders to make or
maintain Eurocurrency Rate Loans shall be suspended, (to the extent of the affected Eurocurrency Rate Loans or
Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the
Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in
determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a
determination by the affected Lenders described in clause (ii) of Section 3.03(a), until the Administrative Agent
upon instruction of the affected Lenders) revokes such notice. Upon receipt of such notice, (1) the Company
may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
(to the extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be deemed to
have converted such request into a request for a Committed Borrowing of Base Rate Loans denominated in US
Dollars in the US Dollar Equivalent of the amount specified therein and (2) any outstanding affected
Eurocurrency Rate Loans will be deemed to have been converted into Base Rate Loans at the end of the
applicable Interest Period; provided that if no election is made by the Company by the earlier of (x) the date that
is three Business Days after receipt by the Company of such notice and (y) the last day of the current Interest
Period for the applicable Eurocurrency Rate Loan, the Company shall be deemed to have elected clause
(1) above.
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(b) Notwithstanding the foregoing, if the Administrative Agent has made the determination described in
clause (i) of Section 3.03(a), the Administrative Agent, in consultation with the Company and the affected
Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of
interest shall apply with respect to the Impacted Loans until (i) the Administrative Agent revokes the notice
delivered with respect to the Impacted Loans under clause (i) of the first sentence of Section 3.03(a), (ii) the
Administrative Agent or the affected Lenders notify the Administrative Agent and the Company that such
alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted
Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund
Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge
interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the
authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Company
written notice thereof.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document:
(i) On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of
LIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of
representativeness of overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12- month
US Dollar LIBOR tenor settings. On the earliest of (A) the date that all Available Tenors of US Dollar
LIBOR have permanently or indefinitely ceased to be provided by IBA or have been announced by the
FCA pursuant to public statement or publication of information to be no longer representative,
(B) June 30, 2023 and (C) the Early Opt-in Effective Date in respect of a SOFR Early Opt-in, if the then-
current Benchmark is LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes
hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all
subsequent settings without any amendment to, or further action or consent of any other party to this
Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all
interest payments will be payable on a monthly basis.
(ii) (x) Upon (A) the occurrence of a Benchmark Transition Event or (B) a determination by the
Administrative Agent that neither of the alternatives under clause (1) of the definition of Benchmark
Replacement are available, the Benchmark Replacement will replace the then-current Benchmark for all
purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00
p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to
the Lenders without any amendment to, or further action or consent of any other party to, this Agreement
or any other Loan Document so long as the Administrative Agent has not received, by such time, written
notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders (and
any such objection shall be conclusive and binding absent manifest error); provided that solely in the
event that the then-current Benchmark at the time of such Benchmark Transition Event is not a SOFR-
based rate, the Benchmark Replacement therefor shall be determined in accordance with clause (1) of the
definition of Benchmark Replacement unless the Administrative Agent determines that neither of such
alternative rates is available.
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(y) On the Early Opt-in Effective Date in respect of an Other Rate Early Opt-in, the Benchmark
Replacement will replace LIBOR for all purposes hereunder and under any Loan Document in respect of
any setting of such Benchmark on such day and all subsequent settings without any amendment to, or
further action or consent of any other party to this Agreement or any other Loan Document.
(iii) At any time that the administrator of the then-current Benchmark has permanently or
indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory
supervisor for the administrator of such Benchmark pursuant to public statement or publication of
information to be no longer representative of the underlying market and economic reality that such
Benchmark is intended to measure and that representativeness will not be restored, the Company may
revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or
continued that would bear interest by reference to such Benchmark until the Company’s receipt of notice
from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing
that, the Company will be deemed to have converted any such request into a request for a borrowing of or
conversion to Base Rate Loans. During the period referenced in the foregoing sentence, the component of
Base Rate based upon the Benchmark will not be used in any determination of Base Rate.
(iv) In connection with the implementation and administration of a Benchmark Replacement, the
Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from
time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any
amendments implementing such Benchmark Replacement Conforming Changes will become effective
without any further action or consent of any other party to this Agreement.
(v) The Administrative Agent will promptly notify the Company and the Lenders of (A) the
implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement
Conforming Changes. Any determination, decision or election that may be made by the Administrative
Agent pursuant to this Section 3.03(c), including any determination with respect to a tenor, rate or
adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to
take or refrain from taking any action, will be conclusive and binding absent manifest error and may be
made in its sole discretion and without consent from any other party hereto, except, in each case, as
expressly required pursuant to this Section 3.03(c).
(vi) At any time (including in connection with the implementation of a Benchmark Replacement),
(A) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR), then the
Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative
for Benchmark (including Benchmark Replacement) settings and (B) the Administrative Agent may
reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
3.04
Increased Costs; Additional Reserve Requirements.
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(a) Increased Costs Generally. If any Change in Law will:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e)) or any
L/C Issuer;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in
clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income 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 L/C Issuer or the London interbank market any other condition, cost
or expense (other than Taxes) affecting this Agreement or Eurocurrency Rate Loans made by such Lender
or any Letter of Credit or participation therein;
and the result of any of the foregoing will be to increase the cost to such Lender of making, continuing,
converting to or maintaining any Loan the interest on which is determined by reference to the Eurocurrency
Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C
Issuer 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 or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or such L/C Issuer, the Company will pay to such Lender or such L/C Issuer, as the case
may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may
be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or L/C Issuer determines that any Change in Law affecting such
Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such 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 such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s
holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans
made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of
Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s
or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s
holding company with respect to capital adequacy and liquidity), then from time to time the Company will pay
to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction
suffered.
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(c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the amount or
amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and delivered to the Company will be conclusive absent
manifest error. The Company will pay such Lender or such L/C Issuer, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or L/C Issuer to demand compensation
pursuant to the foregoing provisions of this Section will not constitute a waiver of such Lender’s or such L/C
Issuer’s right to demand such compensation, provided that the Company will not be required to compensate a
Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than three months prior to the date that such Lender or such 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 such 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 three-month period referred to above will
be extended to include the period of retroactive effect thereof).
(e) Additional Reserve Requirements. The Company shall pay to each Lender, (i) as long as such Lender
shall be required by a central banking or financial regulatory authority with regulatory authority over such
Lender to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or
deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of
each Eurocurrency Rate Loan equal to the actual costs of such reserves allocable to such Loan by such Lender
(as determined by such Lender in good faith, which determination shall be conclusive absent manifest error),
and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous
requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance
of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a
percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual
costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive absent manifest error, which in each case shall be due and payable on
each date on which interest is payable on such Loan, provided, that the Company shall have received at least 10
days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such
Lender with a reasonably detailed explanation of the regulatory requirements imposing such costs and a
calculation of the allocation of such costs to the relevant Loan or Commitment. If a Lender fails to give notice
10 days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable 10
days from receipt of a proper notice. Notwithstanding the foregoing, if any reserves described in this clause
(e) are based upon the financial strength or creditworthiness of a Lender, for the purposes of calculating the
actual costs of a Lender with respect to such reserves, each such Lender shall be deemed to be in the highest
applicable category of financial strength or creditworthiness.
3.05
Compensation for Losses
.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Company will promptly compensate such Lender for and hold such Lender harmless from
any loss, cost or expense (but not loss of Applicable Rate) incurred by it as a result of:
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(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 the Company (for a reason other than the failure of such Lender to make a Loan) to
prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified
by the Company; or
(c) any assignment of a Eurocurrency 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 10.13;
including any loss of anticipated profits, any foreign exchange losses and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from the performance of any foreign exchange contract (but
not loss of Applicable Rate). The Company will also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Company to the Lenders under this Section 3.05, each
Lender will be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for
such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a
comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so
funded.
3.06
Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. Each Lender may make any Credit Extension to the
Company through any Lending Office, provided that the exercise of this option shall not affect the obligation of
the Company to repay the Credit Extension in accordance with the terms of this Agreement. If any Lender
requests compensation under Section 3.04, or the Company is required to pay any Indemnified Taxes or
additional amounts to any Recipient or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender or any L/C Issuer gives a notice pursuant to Section 3.02, then such Lender or
such L/C Issuer, as applicable, will 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 or such L/C Issuer, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject
such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or L/C Issuer, as the case may be, in
connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Company
is required to pay any Indemnified Taxes or additional amounts to any Recipient or any Governmental Authority
for the account of any Recipient pursuant to Section 3.01 and, in each case, such Lender has declined or is
unable to designate a different lending office in accordance with Section 3.06(a), the Company may replace
such Lender in accordance with Section 10.13.
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3.07
Survival
.
All of the Company’s obligations under this Article III will survive termination of the
Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative
Agent.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01
Conditions of Initial Credit Extension
.
The obligation of each L/C Issuer and 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 will be originals or telecopies
(followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of
the Company, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date
before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of
the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the
Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Company in favor of each Lender requesting Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of the Company 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 it is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to
evidence that the Company is duly organized or formed, and that the Company is validly existing and in
good standing;
(v) favorable opinions of the executive vice president, general counsel and secretary of the
Company and Cleary Gottlieb Steen & Hamilton LLP, special outside counsel to the Company, addressed
to the Administrative Agent and each Lender, with respect to the Company, the Loan Documents and such
other matters as the Administrative Agent shall request;
(vi) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents,
licenses and approvals required in connection with the execution, delivery and performance by the
Company and the validity against the Company of the Loan Documents to which it is a party, and such
consents, licenses and approvals will be in full force and effect, or (B) stating that no such consents,
licenses or approvals are so required;
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(vii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions
specified in 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) the current Debt Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the
Company ended on June 28, 2021, signed by a Responsible Officer of the Company;
(ix) evidence that each of the Existing Credit Agreements has been or concurrently with the Closing
Date is being terminated and all amounts owing thereunder have been, or concurrently therewith are
being, paid in full;
(x) at least five (5) days prior to the Closing Date, the Company shall deliver, to each Lender that so
requests, a Beneficial Ownership Certification in relation to the Company if the Company qualifies as a
“legal entity customer” under the Beneficial Ownership Regulation; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative
Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date will have been paid.
(c) Unless waived by the Administrative Agent, the Company will have paid all fees, charges and
disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of such fees, charges and disbursements as will constitute its reasonable estimate
of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings
(provided that such estimate will not thereafter preclude a final settling of accounts between the Company and
the Administrative Agent).
Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance
with the conditions specified in this Section 4.01, each Lender that has signed this Agreement will 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 will have received notice from such Lender prior to the proposed Closing 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 Committed Loan Notice requesting only a conversion of Committed Loans to the other
Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
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(a) The representations and warranties of the Company contained in Article V and in each other Loan
Document or in any document furnished at any time under or in connection herewith or therewith, will be true
and correct on and as of the date of such Credit Extension, except (i) with respect to any Borrowing after the
Closing Date, for the representations and warranties contained in Section 5.05(c) and clause (b) of Section 5.06,
(ii) to the extent that such representations and warranties specifically refer to an earlier date, in which case they
will be true and correct as of such earlier date, and (iii) that for purposes of this Section 4.02, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 will be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default exists, or would result from such proposed Credit Extension or the application of the
proceeds thereof.
(c) The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swing Line Lender will
have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Company
will 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.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and the Lenders that:
5.01
Existence, Qualification and Power
.
The Company and each Material Subsidiary thereof (a) is duly
organized or formed, validly existing and in good standing (or the local equivalent) 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 or lease its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party,
and (c) is duly qualified and is licensed and in good standing (or the local equivalent) 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; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
5.02
Authorization; No Contravention
.
The execution, delivery and performance by the Company of each
Loan Document to which it 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 the Company’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or
require any payment to be made under (i) any Contractual Obligation to which the Company is a party or
affecting it or its properties or
71
any of its Material Subsidiaries that was required to be filed as an exhibit to the Company’s Annual Report on
Form 10-K for the fiscal year ended September 27, 2020 or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which the Company or its property is subject; or (c) violate any
Law. The Company and each Material Subsidiary thereof is in compliance with all Contractual Obligations
referred to in clause (b)(i) except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03
Governmental Authorization; Other Consents
.
Other than a filing on Form 8-K with the SEC, 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, the Company 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 the Company. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to applicable Debtor Relief Laws and the
effect of general principles of equity, whether applied by a court of law or equity.
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 in all
material respects 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 noted therein; and (iii) show all material indebtedness
and other material liabilities, direct or contingent, of the Company and its Subsidiaries as of the date thereof.
(b) The unaudited consolidated balance sheet of the Company and its Subsidiaries dated June 28, 2021,
and the related consolidated statements of income or operations 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 in all material respects 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, 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.
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5.06
Litigation
.
There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Company, threatened in writing, 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 that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) as
to which there is a reasonable possibility of an adverse determination and that, either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
5.07
No Default
.
Neither the Company nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.
5.08
Ownership of Property; Liens
.
Each of the Company and each Subsidiary has good and marketable
title to, or valid leasehold interests in, all real property necessary to its business, except for such defects in title
as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Company and its Material Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.
5.09
Environmental Compliance
.
No violation of Environmental Law exists and no claim exists alleging
potential liability or responsibility for violation of any Environmental Law on the Company’s or any of its
Subsidiary’s respective businesses, operations and properties, in each case to the extent that such violation or
liability or responsibility from such claim could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
5.10
Insurance
.
The properties of the Company and its Material Subsidiaries are insured with financially
sound and reputable insurance companies that are not Affiliates of the Company, in such amounts (after giving
effect to any self-insurance), with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in localities where the Company or the
applicable Material Subsidiary operates.
5.11
Taxes
.
The Company and its Material Subsidiaries have filed all federal, state and other tax returns
and reports that are material and required to be filed, and have paid all federal, state and other taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties, income or
assets that are material and 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. There is no proposed written tax assessment against the Company or any Material Subsidiary
delivered to the Company or Material Subsidiary that would, if made, have a Material Adverse Effect. Neither
the Company nor any Subsidiary thereof is party to any tax sharing agreement other than any tax sharing
arrangement (i) between or among the Company and any one or more Subsidiaries or (ii) that is pursuant to
customary commercial contracts not primarily related to Taxes.
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5.12
ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code
and other federal or state Laws except where such non-compliance could not reasonably be expected to result in
a Material Adverse Effect. Each Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the best knowledge of the Company, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Company and each ERISA Affiliate have met all applicable
requirements under the Pension Funding Rules with respect to each Pension Plan and Multiemployer Plan,
except where failure to meet such requirements could not reasonably be expected to result in a Material Adverse
Effect, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for
or obtained.
(b) There are no pending or, to the best knowledge of the Company, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected
to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur which has resulted or reasonably
could result in liability of the Company or any ERISA Affiliate in any amount in excess of $100,000,000; (ii)
except as could not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) except as
could not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 304 or 4201 of
ERISA with respect to a Multiemployer Plan; (iv) except as could not reasonably be expected to result in a
Material Adverse Effect, neither the Company nor any ERISA Affiliate has engaged in a transaction that could
be subject to Sections 4069 or 4212(c) of ERISA; (v) as of the most recent valuation date for any Pension Plan
or Multiemployer Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is
60% or higher and neither the Company nor any ERISA Affiliate knows of any facts or circumstances that could
reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60%
as of the most recent valuation date; and (vi) except as could not reasonably be expected to result in a Material
Adverse Effect, no Pension Plan or Multiemployer Plan has been terminated by the plan administrator thereof
nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to
cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan or
Multiemployer Plan.
5.13
Subsidiaries; Equity Interests
.
All of the Company’s outstanding Equity Interests in its Material
Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Company free and
clear of all Liens. All of the outstanding Equity Interests in the Company have been validly issued
and are fully
paid and nonassessable.
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5.14
Margin Regulations; Investment Company Act.
(a) The Company is not engaged nor will it 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.
(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.
5.15
Disclosure
.
The Company has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or
orally, and if orally, on which the Administrative Agent or such Lender in good faith and reasonably relies) by
or on behalf of the Company to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by, and taken together as a whole with, other information
so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Company represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
5.16
Compliance with Laws
.
Each of the Company and each Subsidiary is in compliance in all material
respects 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 (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17
Intellectual Property; Licenses, Etc
.
The Company and its Subsidiaries own, or possess the right to
use, without conflict with the rights of any other Person, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) with respect to which the failure to possess or have the right to use or the presence of a conflict with
the rights of any other Person could not reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Company, no slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the Company or any Subsidiary
infringes upon any rights held by any other Person, except where such infringement could not reasonably be
expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or,
to the best knowledge of the Company, threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
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5.18
OFAC
.
None of the Company, any Subsidiary, or, to the knowledge of the Company or such
Subsidiary, any of their respective employees (i) is currently the subject of any Sanctions, or (ii) is located,
organized or residing in any Designated Jurisdiction. No Credit Extension, nor the proceeds from any Credit
Extension, has been used by the Company or any Subsidiary, directly or indirectly, to lend, contribute, provide
or has otherwise been made available to fund any activity or business in any Designated Jurisdiction or, to
Company’s knowledge, to fund any activity or business of any Person located, organized or residing in any
Designated Jurisdiction or who is the subject of any Sanctions, or in any other manner that will result in any
violation by any Person (including any Lender, any Arranger, the Administrative Agent, any L/C Issuer or the
Swing Line Lender) of Sanctions.
5.19
Anti-Corruption Laws. The Company and its Subsidiaries have conducted their businesses in all
material respects in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery
Act 2010, and other similar anti-corruption legislation in other jurisdictions and have instituted and maintained
policies and procedures reasonably designed to promote and achieve compliance with such laws.
5.20
Affected Financial Institution. The Company is not an Affected Financial Institution.
5.21
ERISA Matters
.
The Company represents and warrants as of the Closing Date that the Company is
not and will not be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by
Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the
Commitments.
5.22
Beneficial Ownership Certification. The information included in the Beneficial Ownership
Certification, if applicable, is true and correct in all respects.
5.23
Covered Entity. The Company is not a Covered Entity.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender will have any Commitment hereunder, any Loan or other Obligation hereunder will
remain unpaid or unsatisfied, or any Letter of Credit will remain outstanding, the Company will, and will
(except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each Material Subsidiary
(and in regards to Section 6.12, each Subsidiary) to:
6.01
Financial Statements
.
Deliver to the Administrative Agent (for delivery to each Lender) in form and
detail satisfactory to the Administrative Agent:
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(a) as soon as available, but in any event within 90 days after the end of each fiscal year of the Company
(or, if earlier, 15 days after the date required to be filed with the SEC) (commencing with the fiscal year ending
October 3, 2021), a consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal
year, and the related consolidated statements of income or operations 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 a Registered Public
Accounting Firm of nationally recognized standing as to whether such financial statements are free of material
misstatement, which report and opinion will be prepared in accordance with audit standards of the Public
Company Accounting Oversight Board and will not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit or with respect to the absence of
material misstatement; 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 of the Company (or, if earlier, 15 days after the date required to be filed with the
SEC) (commencing with the fiscal quarter ending January 2, 2022), a consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal quarter, and the related consolidated statements of
income or operations and cash flows for such fiscal quarter and for the portion of the Company’s 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, certified
by a Responsible Officer of the Company as fairly presenting the financial condition, results of operations 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(b), the Company will not be
separately required to furnish such information under clause (a) or (b) above, but the foregoing will 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 (for delivery to each Lender) in
form and detail satisfactory to the Administrative Agent:
(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 (which delivery may, unless
the Administrative Agent requests executed originals, be by electronic communication including fax or email
and shall be deemed to be an original thereof for all purposes);
(b) promptly after the same are available, copies of each annual report, proxy or financial statement or
other report or communication sent to the shareholders of the Company, and copies of all annual, regular,
periodic and special reports and registration statements that 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;
77
(c) promptly, and in any event within five Business Days after receipt thereof by the Company or any
Material 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 (excluding routine comment letters) by such agency regarding financial or other
operational results of the Company or any Subsidiary thereof;
(d) 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; and
(e) promptly upon the occurrence thereof, any change in the information provided in the Beneficial
Ownership Certification that would result in a change to the list of beneficial owners identified in such
certification.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(b) or (c) (to the
extent any such documents are included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, will 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 10.02 (provided that the Company will notify the Administrative Agent (by facsimile
or electronic mail) of the posting of any such documents); (ii) on which such documents are posted on the
Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); (iii)
on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided
by the Administrative Agent); or (iv) on which such items have been made available on the SEC website.
Except with respect to Compliance Certificates, the Administrative Agent will have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the 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.
The Company hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall
not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by
or on behalf of the Company hereunder (collectively, “Company Materials”) by posting the Company Materials
on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Company or its Affiliates, or the respective securities of any of the
foregoing, and who may be engaged in investment and other market-related activities with respect to such
Persons’ securities. The Company hereby agrees that (w) all Company Materials that are to be made available to
Public Lenders will be clearly and conspicuously marked “PUBLIC” which, at a minimum, will mean that the
word “PUBLIC” will appear prominently on the first page thereof; (x) by marking Company Materials
“PUBLIC”, the Company will be deemed to have authorized the Administrative Agent, the Arrangers, the L/C
78
Issuers and the Lenders to treat such Company Materials as not containing any material non-public information
with respect to the Company or its securities for purposes of United States federal and state securities laws
(provided, however, that to the extent such Company Materials constitute Information, they will be treated as set
forth in Section 10.07); (y) all Company Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and
the Arrangers will be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Side Information”.
6.03
Notices
.
Promptly notify the Administrative Agent (for notification to 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 any such matter resulting from (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 Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting practices by the Company or any
Subsidiary, including any determination by the Company referred to in Section 2.11(b); and
(e) of any announcement by Moody’s or S&P of any change in a Debt Rating.
Each notice pursuant to this Section (other than Section 6.03(e)) will 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)
will describe with particularity any and all provisions of this Agreement and any other Loan Document that have
been breached.
6.04
Payment of Obligations
.
Pay and discharge as the same will become due and payable, all its
obligations and liabilities, including (a) all material tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the
Company or such Material Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon
its property and such Lien is not permitted under Section 7.01; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such
Indebtedness except to the extent that failure to pay such Indebtedness, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
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6.05
Preservation of Existence, Etc
.
(a) Preserve, renew and maintain in full force and effect the legal
existence and good standing of the Company and its Material Subsidiaries under the Laws of the jurisdiction of
its organization except in a transaction permitted by Section 7.03; (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-
preservation of which could reasonably be expected to have a Material Adverse Effect.
6.06
Maintenance of Properties
.
(a) 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 and (b) make all necessary repairs thereto and renewals and replacements thereof except, in each
case of clause (a) and (b) above, where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
6.07
Maintenance of Insurance
.
Maintain with financially sound and reputable insurance companies that
are not Affiliates of the Company, 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 (after giving effect to any self-insurance) as are customarily carried under similar circumstances
by such other Person.
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 (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.09
Books and Records
.
Maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied will be made of all financial transactions and matters
involving the assets and business of the Company or such Material Subsidiary, as the case may be.
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
officers having direct knowledge or responsibility of the subject matter, provided, however, that such visits,
inspections or examinations will be made at a reasonable time during normal business hours with due regard for,
and minimal disruption of, the business of the Company and its Subsidiaries, and will not (a) be at the expense
of the Company, (b) occur more frequently than once in any 12-month period and (c) be made without five
(5) Business Days’ prior notice; provided further, however, 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.
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6.11
Use of Proceeds
.
Use the proceeds of the Credit Extensions (a) to refinance amounts outstanding
under the Existing Credit Agreement and (b) for general corporate purposes not in contravention of any Law or
of any Loan Document, such general corporate purposes will include but not be limited to working capital,
capital expenditures, acquisitions and share repurchases.
6.12
Anti-Corruption Laws. Conduct its businesses in all material respects in compliance with the United
States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption
legislation in other jurisdictions and maintain policies and procedures reasonably designed to promote and
achieve compliance with such laws.
6.13
Know Your Customer. Promptly following any request therefor, provide information and
documentation reasonably requested by the Administrative Agent or any Lender necessary for purposes of
compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including,
without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender will have any Commitment hereunder, any Loan or other Obligation hereunder will
remain unpaid or unsatisfied, or any Letter of Credit will remain outstanding, the Company in Section 7.01 and
Sections 7.03 through 7.09 will not, nor will it permit or allow any Material Subsidiary (and in regards to
Sections 7.08 and 7.09, each Subsidiary) in any section of this Article VII 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) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof,
provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not
increased and (iii) the direct or any contingent obligor with respect thereto is not changed;
(c) Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the
ordinary course of business which are not overdue for a period of more than 60 days or which are being
contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;
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(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness),
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in
the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable
Person;
(h) Liens securing judgments for the payment of money not constituting an Event of Default under
Section 8.01(h) or securing appeal or other surety bonds relating to such judgments;
(i) precautionary UCC filings in respect of operating leases;
(j) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do
not (i) interfere in any material respect with the business of the Company or the Company and its Material
Subsidiaries taken as a whole or (ii) secure any Indebtedness;
(k) Liens in favor of a lessor under any lease entered into by the Company or any Material Subsidiary in
the ordinary course of business but only with respect to the assets so leased;
(l) Liens on assets of any entity acquired by the Company or any of its Subsidiaries in a transaction
permitted under this Agreement; provided that (i) such Liens are in existence on the date of such acquisition and
not created in anticipation thereof and (ii) such Liens are released within 180 days of the consummation of such
acquisition;
(m) Liens securing Indebtedness permitted under Section 7.02(c); and
(n) Liens not otherwise permitted by Sections 7.01(a) through (m) (including but not limited to ERISA
Liens) that will not in the aggregate at any time attach to assets of the Company and its Subsidiaries in excess of
15% of the Consolidated Total Assets as measured as of the applicable date of the financial information most
recently delivered to the Administrative Agent pursuant to Section 4.01(a)(viii) or 6.01.
7.02
Indebtedness
.
Create, incur, assume or suffer to exist any Indebtedness, except:
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(a) Guarantees of any Subsidiary
in respect of Indebtedness otherwise permitted hereunder of the
Company or any other Subsidiary;
(b) obligations (contingent or otherwise) of any Subsidiary existing or arising under any Swap Contract,
provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and
not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions
to the defaulting party;
(c) secured Indebtedness in an aggregate principal amount at any time outstanding that does not exceed
10% of the Consolidated Total Assets as measured as of the applicable date of the financial information most
recently delivered to the Administrative Agent pursuant to Section 4.01(a)(viii) or 6.01;
(d) unsecured Indebtedness not otherwise permitted by Sections 7.02(a) and (b) in an aggregate principal
amount at any time outstanding that does not exceed 15% of the Consolidated Total Assets as measured as of
the applicable date of the financial information most recently delivered to the Administrative Agent pursuant to
Section 4.01(a)(viii) or 6.01; and
(e) intercompany loans made among the Company and its Subsidiaries or among the Company’s
Subsidiaries.
7.03
Fundamental Changes; Dispositions
.
Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the
assets (whether now owned or hereafter acquired) of the Company or any Material Subsidiary to or in favor of
any Person, except that, so long as no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Company, provided that the Company will be the continuing,
surviving or resulting Person, or (ii) any one or more other Subsidiaries, provided that when any wholly-owned
Subsidiary
is merging with another Subsidiary, the wholly-owned Subsidiary will be the continuing, surviving
or resulting Person;
(b) the Company or any Subsidiary may merge or consolidate with another Person in a transaction where
the surviving, continuing or resulting Person is the Company or a Subsidiary;
(c) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or
otherwise) to the Company or to another Subsidiary; provided that if the transferor in such a transaction is a
wholly-owned Subsidiary, then the transferee must either be the Company or a wholly-owned Subsidiary; and
(d) the Company and any Subsidiary may Dispose of assets so long as the aggregate book value of all
assets Disposed of by the Company and its Subsidiaries since the Closing Date pursuant to this Section 7.03(d)
does not exceed 30% of Consolidated Total Assets as measured as of the applicable date of the financial
information most recently delivered to the Administrative Agent pursuant to Section 4.01(a)(viii) or 6.01.
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7.04
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
substantially related or incidental thereto.
7.05
Transactions with Affiliates
.
Enter into any 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 Material Subsidiary as would be obtainable by the Company
or such Material Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate, provided that the foregoing restriction will not apply to (i) transactions between or among the
Company and any of its wholly-owned Subsidiaries or between and among any wholly-owned Subsidiaries,
(ii) the payment of fees, expenses and compensation to officers and directors of the Company or any of its
Subsidiaries and indemnification agreements with officers and directors of the Company or any of its
Subsidiaries entered into by the Company or any of its Subsidiaries, (iii) dividends and distributions to
shareholders and equityholders and (iv) transactions otherwise expressly permitted by this Agreement.
7.06
Consolidated Fixed Charge Coverage Ratio
.
Permit the Consolidated Fixed Charge Coverage Ratio
as of the last day of each fiscal quarter of the Company to be less than 2.50 to 1.00.
7.07
[Reserved].
7.08
Sanctions. Directly or knowingly indirectly, use the proceeds of any Credit Extension, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual
or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction,
that, at the time of such funding, is the subject of Sanctions, in each case in any manner that will result in a
violation by any individual or entity (including any individual or entity participating in the transaction, whether
as Lender, Arranger, Administrative Agent, Swing Line Lender, L/C Issuer, underwriter, advisor, investor, or
otherwise) of Sanctions.
7.09
Anti-Corruption Laws. Directly or knowingly indirectly use the proceeds of any Credit Extension for
any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act
2010, and other similar anti-corruption legislation in other jurisdictions.
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ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01
Events of Default
.
Any of the following will constitute an Event of Default:
(a) Non-Payment. The Company fails to pay (i) when and as required to be paid herein, and in the
currency required hereunder, 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 fails to perform or observe any term, covenant or agreement
contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10, or 6.11 or Article VII; or
(c) Other Defaults. The Company fails to perform or observe any other covenant or agreement (not
specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for 30 days unless such failure is not susceptible to cure within 30 days and,
within such 30 days, the Company has taken reasonable steps to effectuate a cure and continues to diligently
pursue such cure within 60 days of such failure; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made
or deemed made by or on behalf of the Company herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith is incorrect or misleading in any material respect when made or
deemed made; or
(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) 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 $200,000,000, or (B) fails to
observe or perform 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 occurs, the
effect of which default or other event 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) 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
$200,000,000; or
85
(f) Insolvency Proceedings, Etc. The Company or any of its Material 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 calendar 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 calendar days, or
an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Company or any Material Subsidiary admits in writing its
inability or fails generally to pay its debts as they become due, or (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 the Company or
any such Material Subsidiary and is not released, vacated or fully bonded within 30 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 $200,000,000 (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 30 consecutive days during which such
judgment is not satisfied or discharged or 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 $100,000,000, 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 $100,000,000; or
(j) Invalidity of Loan Documents. Any material provision of a 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 the Company or any other Person (other than any
Lender, the Administrative Agent or any L/C Issuer) contests in any manner the validity or enforceability of any
Loan Document; or the Company 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 will, at the request of, or may, with the consent of, the Required Lenders, take any or all
of the following actions:
86
(a) declare the commitment of each Lender to make Loans and any obligation of any L/C Issuer to make
L/C Credit Extensions to be terminated, whereupon such commitments and obligation will be terminated;
(b) declare 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 Company;
(c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then
Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders
under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to
the Company under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and
any obligation of each L/C Issuer to make L/C Credit Extensions will automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as aforesaid will automatically
become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as
aforesaid will 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 will, subject to Sections 2.16 and 2.17, 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 fees, charges and disbursements of counsel to the Administrative Agent 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, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including
fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers (including fees and
time charges for attorneys who may be employees of any Lender or any L/C Issuer) and amounts payable under
Article III), ratably among them in proportion to the respective amounts described in this clause Second payable
to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees
and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C
Issuers in proportion to the respective amounts described in this clause Third payable to them;
87
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 Issuers in proportion to the respective amounts described in
this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the applicable L/C Issuer, to Cash Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not
otherwise Cash Collateralized by the Company pursuant to Sections 2.04 and 2.16; 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 2.04(c) and 2.16, amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above will 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 will be applied to the other Obligations, if any, in the order set
forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01
Appointment and Authority
.
Each of the Lenders and the L/C Issuers hereby irrevocably appoints
Bank of America 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 Issuers, and the Company will
have no 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 will 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” will, 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, own securities of,
act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with the Company 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.
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9.03
Exculpatory Provisions
.
The Administrative Agent will not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be
administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a) will not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing;
(b) will 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 will be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent will 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) will not, except as expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and will not be liable for the failure to disclose, any information relating to the Company or any of its
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 will 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 will be necessary,
or as the Administrative Agent will believe in good faith will be necessary, under the circumstances as provided
in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent
will be deemed not to have knowledge of any Default unless and until notice describing such Default is given to
the Administrative Agent in writing by the Company, a Lender or an L/C Issuer.
The Administrative Agent will 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.
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9.04
Reliance by Administrative Agent
.
The Administrative Agent will be entitled to rely upon, and will
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 will not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or
increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer,
the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer
unless the Administrative Agent will have received notice to the contrary from such Lender or such 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 will 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 will apply to any such sub agent and to the Related Parties of the Administrative Agent
and any such sub agent, and will apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall
not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of
competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted
with gross negligence or willful misconduct in the selection of such sub-agents.
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
Issuers and the Company. Upon receipt of any such notice of resignation, the Required Lenders will have the
right, in consultation with the Company, to appoint a successor, which will 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 will have
been so appointed by the Required Lenders and will have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation (or such earlier day as may be agreed by the
Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but will not
be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting
the qualifications set forth above, so long as such successor Administrative Agent is not a Defaulting Lender.
Whether or not a successor has been appointed, such resignation will nonetheless become effective in
accordance with such notice on the Resignation Effective Date.
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(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, in consultation with the
Company, appoint a successor. If no such successor will have been so appointed by the Required Lenders and
will have accepted such appointment within 30 days (or such earlier day as may be agreed by the Required
Lenders) (the “Removal Effective Date”), then such removal will 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 will be discharged from its duties and obligations hereunder and
under the other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring or removed
Administrative Agent will continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring or
removed Administrative Agent, all payments, communications and determinations provided to be made by, to or
through the Administrative Agent will instead be made by or to each Lender and each L/C Issuer directly, until
such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor will succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or removed) Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to
indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the
Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed
Administrative Agent will be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the
Company to a successor Administrative Agent will 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 Loan Documents, the provisions of this Article
and Section 10.04 will 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 (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after
such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the
other Loan Documents, including, without limitation, (A) acting as collateral agent or otherwise holding any
collateral security on behalf of any of the Lenders and (B) in respect of any actions taken in connection with
transferring the agency to any successor Administrative Agent.
(d) Any resignation by Bank of America as Administrative Agent pursuant to this Section will also
constitute its resignation as an L/C Issuer and Swing Line Lender. If Bank of America resigns as an L/C Issuer,
it will retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of
Credit issued by it and outstanding as of the effective date of its resignation as an L/C Issuer and all L/C
Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans. If Bank of
America resigns as Swing Line Lender, it will retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the appointment by the Company of any
successor L/C Issuer or Swing Line Lender hereunder
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(which successor will in all cases be a Lender other than a Defaulting Lender), (a) such successor will succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing
Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender will be discharged from all of
their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C
Issuer will issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of
Bank of America with respect to such Letters of Credit.
9.07
Non-Reliance on the Administrative Agent, the Arranger and the Other Lenders.
Each Lender and
each L/C Issuer expressly acknowledges that none of the Administrative Agent nor the Arranger has made any
representation or warranty to it, and that no act by the Administrative Agent or the Arranger hereafter taken,
including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any
Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent or
the Arranger to any Lender or each L/C Issuer as to any matter, including whether the Administrative Agent or
the Arranger have disclosed material information in their (or their Related Parties’) possession. Each Lender and
each L/C Issuer represents to the Administrative Agent and the Arranger that it has, independently and without
reliance upon the Administrative Agent, the Arranger, 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 of,
appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to
extend credit to the Lender hereunder. Each Lender and each L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Arranger, 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 credit analysis, appraisals and 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, and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan
Parties. Each Lender and each L/C Issuer represents and warrants that (i) the Loan Documents set forth the
terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in
the ordinary course and is entering into this Agreement as a Lender or L/C Issuer for the purpose of making,
acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to
such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring or holding any other type of
financial instrument, and each Lender and each L/C Issuer agrees not to assert a claim in contravention of the
foregoing. Each Lender and each L/C Issuer represents and warrants that it is sophisticated with respect to
decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may
be applicable to such Lender or such L/C Issuer, and either it, or the Person exercising discretion in making its
decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced
in making, acquiring or holding such commercial loans or providing such other facilities.
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9.08
No Other Duties, Etc
.
Anything herein to the contrary notwithstanding, none of the Bookrunners, the
Arrangers, the Syndication Agents or the Co-Documentation Agents listed on the cover page hereof will have
any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.
9.09
Administrative Agent May File Proofs of Claim
.
In case of the pendency of any proceeding under
any Debtor Relief Law or any other judicial proceeding relative to the Company is pending, the Administrative
Agent (irrespective of whether the principal of any Loan or L/C Obligation will then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent will have
made any demand on the Company) will 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 Issuers and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.04(h) and
(i), 2.10 and 10.04) 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;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the
Administrative Agent and, in the event that the Administrative Agent will consent to the making of such
payments directly to the Lenders and the L/C Issuers, 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 10.04.
Nothing contained herein will be deemed to authorize the Administrative Agent to authorize or consent to
or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize
the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
9.10
Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being
a Lender party hereto, for the benefit of, the Administrative Agent, each Arranger and their respective Affiliates,
and not, for the avoidance of doubt, to or for the benefit of the Company, that at least one of the following is and
will be true:
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(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA) of one or
more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption
for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a
class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a
class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-
38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a
class exemption for certain transactions determined by in-house asset managers), is applicable with
respect to such Lender’s entrance into, participation in, administration of and performance of the Loans,
the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager”
(within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the
investment decision on behalf of such Lender to enter into, participate in, administer and perform the
Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this
Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the
best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied
with respect to such Lender’s entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the
Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a
Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-
clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the
date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a
Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agent, each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or
for the benefit of the Company, that none of the Administrative Agent, any Arranger or any of their respective
Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or
exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any
documents related to hereto or thereto).
9.11
Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at
any time the Administrative Agent makes a payment hereunder in error to any Credit Party, whether or not in
respect of an Obligation due and owing by the Company at such time, where such payment is a Rescindable
Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to
the Administrative Agent
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forthwith on demand the Rescindable Amount received by such Credit Party in immediately available funds in
the currency so received, with interest thereon, for each day from and including the date such Rescindable
Amount is received by it to but excluding the date of payment to the Administrative Agent, at a rate per annum
equal to the applicable Overnight Rate. Each Credit Party irrevocably waives any and all defenses, including
any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid
by a third party in respect of a debt owed by another) or similar defense to its obligation to return any
Rescindable Amount. The Administrative Agent shall inform each Credit Party promptly upon determining that
any payment made to such Credit Party comprised, in whole or in part, a Rescindable Amount.
ARTICLE X.
MISCELLANEOUS
10.01
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 therefrom, will be effective unless in writing
signed by the Required Lenders and the Company and acknowledged by the Administrative Agent, and each
such waiver or consent will be effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or consent will:
(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 10.01) any fees or other amounts payable hereunder
or under any other Loan Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders will be necessary (i) to amend the definition
of “Default Rate” or to waive any obligation of the Company to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce
any fee payable hereunder;
(e) change Sections 2.14 or 8.03 in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender; or
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(f) 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;
and, provided further, that (i) no amendment, waiver or consent will, unless in writing and signed by the
applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer
under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent will, unless in writing and signed by the Swing Line Lender in addition to the
Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent will, 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; and (iv) the Fee Letters may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting
Lender will have any right to approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of such Defaulting Lender may not be increased or extended without the consent of such Lender
and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that
by its terms affects any Defaulting Lender more adversely (and disproportionately) than other affected Lenders
shall require the consent of such Defaulting Lender.
10.02
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 will be in writing and will be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone will be made to the applicable telephone number, as follows:
(i) if to the Company, the Administrative Agent, Bank of America in its capacity as an L/C Issuer,
or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and
(ii) if to any other Lender or L/C Issuer, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire (including, as appropriate, notices
delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect
for the delivery of notices that may contain material non-public information relating to the Company).
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Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered
mail, will be deemed to have been given when received; notices and other communications sent by facsimile
will be deemed to have been given when sent (except that, if not given during normal business hours for the
recipient, will be deemed to have been given at the opening of business on the next Business Day for the
recipient). Notices and other communications delivered through electronic communications to the extent
provided in subsection (b) below, will be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers
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 will not
apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such 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, the Swing Line Lender, any L/C Issuer or the Company
may each, 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 will 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 will 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), if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication will be deemed to have been sent at the
opening of business on the next Business Day for the recipient.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE COMPANY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE COMPANY MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE COMPANY MATERIALS OR THE PLATFORM. In
no event will the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any
liability to the Company, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities
or expenses of any kind (whether in tort, contract or otherwise) arising out of the Company’s or the
Administrative Agent’s transmission of Company Materials or notices through the Platform, any other
electronic platform or electronic messaging service, or through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event will any Agent Party have any liability to the Company, any Lender, any
L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).
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(d) Change of Address, Etc. Each of the Company, the Administrative Agent, Bank of America, as an L/C
Issuer, and the Swing Line Lender may change its address, facsimile or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender and L/C Issuer may change
its address, facsimile or telephone number for notices and other communications hereunder by notice to the
Company, the Administrative Agent, each other L/C Issuer and the Swing Line Lender. 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, facsimile 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 Company Materials 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 the Company or its securities
for purposes of United States federal or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuers and Lenders.
The Administrative Agent, the L/C
Issuers and the Lenders will be entitled to rely and act upon any notices (including telephonic or electronic
notices, Committed Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly
given by or on behalf of the Company 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. The Company will indemnify the
Administrative Agent, each 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 on each notice purportedly given by or
on behalf of the Company. 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.
10.03
No Waiver; Cumulative Remedies; Enforcement
.
No failure by any Lender, L/C Issuer, or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder will operate as a waiver thereof; nor will 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.
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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority
to enforce rights and remedies hereunder and under the other Loan Documents against the Company shall be
vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be
instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the
benefit of all the Lenders and all L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or
the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as
an L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents,
(c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of
Section 2.14), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to the Company under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent
pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding
proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.
10.04
Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company will pay (i) all reasonable out of pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for
the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby will be consummated), (ii) all reasonable out of pocket expenses
incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all out of pocket expenses incurred by the Administrative
Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or any L/C Issuer), and will pay all fees and time charges for attorneys who
may be employees of the Administrative Agent, any Lender or any L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued
hereunder, including all such out of pocket expenses incurred during any workout, restructuring or negotiations
in respect of such Loans or Letters of Credit. Without limiting the provisions of Sections 3.01(a)—(c), this
Section 10.04(a) does not apply with respect to Taxes.
(b) Indemnification by the Company. The Company will indemnify the Administrative Agent (and any
sub-agent thereof), the Arrangers, each Lender and each L/C Issuer, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from (and reimburse such Indemnitee as the same are incurred for), any and all losses, claims, damages,
liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee), and will indemnify and hold harmless each Indemnitee from all fees and time charges and
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disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Company arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby (including, without limitation, the Indemnitee’s reliance on any Communication
executed using an Electronic Signature, or in the form of an Electronic Record), the performance by the parties
hereto of their respective obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, the use of any proceeds hereunder, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or
operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any way to the
Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought
by a third party, any Indemnitee or by the Company or its equity holders or creditors, and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity will not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses result from (x) the gross negligence
or willful misconduct of such Indemnitee as determined in a final and nonappealable judgment by a court of
competent jurisdiction, (y) a claim brought by the Company against an Indemnitee for breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company has obtained a
final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction
or (z) any dispute solely among the Indemnitees, other than any claims against an Indemnitee in its capacity or
in fulfilling its role as an Administrative Agent or Arranger or any similar role hereunder or under any other
Loan Document, and other than any claims arising out of any act or omission on the part of the Company and its
Subsidiaries or Affiliates. Without limiting the provisions of Section 3.01(c), this Section 10.04(b) does not
apply with respect to Taxes other than Taxes that represent losses, claims, damages or other similar amounts
arising from non-Tax claims.
(c) Reimbursement by Lenders. To the extent that the Company for any reason fails 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), any L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such L/C Issuer,
Swing Line Lender or such Related Party, as the case may be, such Lender’s Applicable Percentage (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 such L/C
Issuer or the Swing Line Lender 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 such L/C Issuer or the Swing Line Lender in
connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.13(d).
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(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the
Company and its Subsidiaries and Affiliates will not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability (whether direct or indirect, in contract, tort or otherwise), for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients (excluding any Indemnitee) of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a
court of competent jurisdiction. The indemnities in this Section 10.04 shall not abrogate, modify or diminish the
obligations of the Administrative Agent, the Lenders and the L/C Issuers to keep certain information
confidential in the manner and to the extent provided in Section 10.07.
(e) Payments. All amounts due under this Section will be payable not later than ten Business Days after
demand therefor.
(f) Survival. The agreements in this Section and the indemnity provisions of Section 10.02(e) will survive
the resignation of the Administrative Agent, any L/C Issuer and the Swing Line Lender, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
10.05
Payments Set Aside
.
To the extent that any payment by or on behalf of the Company is made to the
Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, such 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 will be revived and continued in full force and effect as if such payment had not been made or such
setoff had not occurred, and (b) each Lender and each 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, plus interest thereon from the date of such demand to the date such payment is made at a
rate per annum equal to the applicable 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 Issuers under clause (b) of the preceding
sentence will survive the payment in full of the Obligations and the termination of this Agreement.
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10.06
Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the
Company may not 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 Eligible Assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (e) of
this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any party hereto will be null and void).
Nothing in this Agreement, expressed or implied, will 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
subsection (e) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and
the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line
Loans) at the time owing to it); provided that:
(i) except 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 or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the 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, will not be less than $5,000,000
unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such
consent not to be unreasonably withheld or delayed (for the avoidance of doubt, it shall be deemed
reasonable for the Company to withhold consent for an assignment if such assignment could result in
unreimbursed costs, including, without limitation, additional payments pursuant to Section 3.01 or 3.04));
provided, however, that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee
and members of its Assignee Group) will be treated as a single assignment for purposes of determining
whether such minimum amount has been met;
(ii) each partial assignment will 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 Loans or the
Commitment assigned, except that this clause (ii) will not apply to rights in respect of Swing Line Loans;
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(iii) no consent shall be required for any assignment except to the extent required by
Section 10.06(b)(i) and, in addition:
(A) the consent of the Company (such consent not to be unreasonably withheld, conditioned
or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the
time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund; provided that the Company shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative Agent within five
Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld,
conditioned or delayed) shall be required if such assignment is to a Person that is not a Lender, an
Affiliate of a Lender or an Approved Fund with respect to a Lender; and
(C) the consent of the L/C Issuers and the Swing Line Lender, such consent not to be
unreasonably withheld, conditioned or delayed, shall be required for any assignment.
(iv) The parties to each assignment will execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500;
provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment; and the Eligible Assignee, if it will not be a
Lender, will deliver to the Administrative Agent an Administrative Questionnaire.
(v) No such assignment shall be made (A) to the Company or any of the Company’s Affiliates or
Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a
Lender hereunder, would constitute a Defaulting Lender or a Subsidiary thereof, or (C) to a natural Person
(or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a
natural Person).
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (d) of this
Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee
thereunder will 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 will, 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 will cease to be a party hereto) but
will continue to be entitled to the benefits of Sections 3.01 (subject to the requirements thereof, including
Section 3.01(e), 3.04, 3.05, and 10.04 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
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Lender’s having been a Defaulting Lender. Upon request, the Company (at its expense) will execute and deliver
a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection will be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (e) of this Section.
(c) 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 (x) pay and satisfy in full all payment liabilities
then owed by such Defaulting Lender to the Administrative Agent, any L/C Issuer or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.
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.
(d) Register. The Administrative Agent, acting solely for this purpose as an agent of the Company (and
such agency being solely for tax purposes), will maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of (and
stated interest on) the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”). The entries in the Register will be conclusive, absent manifest error, and the Company,
the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register will be available for inspection by the Company and each L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or substantive change to the Loan Documents is pending, any Lender may request and
receive from the Administrative Agent a copy of the Register.
(e) Participations. Any Lender may at any time, without the consent of, or notice to, the Company or the
Administrative Agent, Swing Line Lender or any L/C Issuer, sell participations to any Person (other than a
natural Person or a holding company, investment vehicle or trust for, or owned and operated for, the primary
benefit of a natural Person, a Defaulting Lender 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 (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such
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Lender’s obligations under this Agreement will remain unchanged, (ii) such Lender will remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the Company, the
Administrative Agent, the Lenders and the L/C Issuers will 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 10.04(c) without regard to the existence
of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation will provide that such
Lender will 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, waiver or other modification
described in the first proviso to Section 10.01 that affects such Participant. The Company agrees that each
Participant will be entitled to the benefits (and subject to the limitations and requirements) of Sections 3.01, 3.04
and 3.05
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section (it being understood that the documentation required under Section 3.01(e) shall
be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to
be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under subsection (b) of this
Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to
any participation, than the Lender from whom it acquired the applicable participation 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 3.06 with respect to any Participant. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant
agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the
name and address of each Participant and the principal amounts of (and stated interest on) each Participant’s
interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that
no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the
identity of any Participant or any information relating to a Participant’s interest in any commitments, loans,
letters of credit or its other obligations under any Loan Document) to any Person except to the extent that
(a) such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in
registered form under Section 163 of the Code and any related United States Treasury Regulations or (b) a
Lender is requesting, on behalf of a Participant, payment of an amount contemplated by Section 3.01, 3.04 or
3.05. 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.
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(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 (including under its Note(s), if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment will release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments and Certain Other Documents. This Agreement and any
document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or
authorization related to this Agreement (each a “Communication”), including Communications required to be in
writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. The
Company agrees that any Electronic Signature on or associated with any Communication shall be valid and
binding on the Company to the same extent as a manual, original signature, and that any Communication
entered into by Electronic Signature, will constitute the legal, valid and binding obligation of the Company
enforceable against such in accordance with the terms thereof to the same extent as if a manually executed
original signature was delivered. Any Communication may be executed in as many counterparts as necessary or
convenient, including both paper and electronic counterparts, but all such counterparts are one and the same
Communication. For the avoidance of doubt, the authorization under this paragraph may include, without
limitation, use or acceptance by the Administrative Agent and each of the Lenders of a manually signed paper
Communication which has been converted into electronic form (such as scanned into PDF format), or an
electronically signed Communication converted into another format, for transmission, delivery and/or retention.
The Administrative Agent and each of the Lenders may, at its option, create one or more copies of any
Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed
created in the ordinary course of the such Person’s business, and destroy the original paper document. All
Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an
original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record.
Notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to
accept an Electronic Signature in any form or in any format unless expressly agreed to by the Administrative
Agent pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent
the Administrative Agent has agreed to accept such Electronic Signature, the Administrative Agent and each of
the Lenders shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the
Company without further verification and (b) upon the request of the Administrative Agent or any Lender, any
Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof,
“Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15
USC §7006, as it may be amended from time to time.
(h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time a Person assigns all of its Commitment and Loans pursuant to
subsection (b) above and such Person is the Swing Line Lender or an L/C Issuer (an “Assigning Swing Line L/C
Lender”), such Person may, as applicable, (i) upon 30 days’ notice to the Company and the Lenders, resign as an
L/C Issuer and/or (ii) upon 30 days’ notice to the Company, resign as Swing Line Lender. In the event of any
such resignation as an L/C Issuer or Swing Line Lender, the Company will be entitled to
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appoint from among the Lenders successor L/C Issuers or a successor Swing Line Lender hereunder; provided,
however, that no failure by the Company to appoint any such successor will affect the resignation of the
applicable Assigning Swing Line L/C Lender as an L/C Issuer or Swing Line Lender, as the case may be. If an
Assigning Swing Line L/C Lender resigns as an L/C Issuer, it will retain all the rights, powers, privileges and
duties of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.04(c)). If an Assigning Swing Line L/C Lender resigns as Swing Line Lender, it will retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base
Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor will succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer will issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to
the applicable Assigning Swing Line L/C Lender to effectively assume the obligations of such Assigning Swing
Line L/C Lender with respect to such Letters of Credit.
10.07
Treatment of Certain Information; Confidentiality
.
Each of the Administrative Agent, the Lenders
and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates, its auditors and its Related Parties (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 required or requested by any regulatory
authority purporting to have jurisdiction over it or its Related Parties (including any self-regulatory authority,
such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) 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 party (or its Related Parties) to any swap or derivative transaction
relating to the Company and its obligations, (g) with the consent of the Company, (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, any L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Company or (i) on a confidential basis to (i) any rating
agency in connection with rating the Company or its Subsidiaries or the credit facility provided hereunder or
(ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP
numbers or other market identifiers with respect to the credit facility provided hereunder. In addition, the
Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending industry and service providers to
the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other
Loan Documents, and the Commitments.
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For purposes of this Section, “Information” means all information received from the Company or any
Subsidiary relating to the Company or any Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential
basis prior to disclosure by the Company or any Subsidiary, provided that, in the case of information received
from the Company or any Subsidiary 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 will 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.
Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information
may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public information and (c) it will handle
such material non-public information in accordance with applicable Law, including federal and state securities
Laws.
Subject to any applicable requirements of federal, state or local laws or regulations, including securities
laws or regulations, neither the Administrative Agent nor any Lender will make or cause to be made, whether
orally or in writing or otherwise, any public announcement or statement that is intended for the general public
and not targeted primarily to reach audiences in the banking industry and the industry’s customers with respect
to the transactions contemplated by this Agreement, or any of the provisions of this Agreement, without the
prior written approval of the Company as to the form, content and timing of such announcement or disclosure,
which approval may be given or withheld in the Company’s sole discretion.
10.08
Right of Setoff
.
If an Event of Default will have occurred and be continuing, each Lender, each L/C
Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the
account of the Company against any and all of its obligations now or hereafter existing under this Agreement or
any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates, irrespective of
whether or not such Lender or such L/C Issuer or Affiliate will have made any demand under this Agreement or
any other Loan Document and although such obligations may be contingent or unmatured or are owed to a
branch or office of such Lender or such L/C Issuer or Affiliate different from the branch or office holding such
deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise
any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent
for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be
segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent, any L/C Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable
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detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights
of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates
may have. Each Lender and each L/C Issuer agrees to notify the Company and the Administrative Agent
promptly after any such setoff and application, provided that the failure to give such notice will not affect the
validity of such setoff and application.
10.09
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 will not exceed the maximum rate
of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any
Lender will receive interest in an amount that exceeds the Maximum Rate, the excess interest will be applied to
the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. 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.
10.10
Counterparts; Integration; Effectiveness
.
This Agreement may be executed in counterparts (and by
different parties hereto in different counterparts), each of which will constitute an original, but all of which
when taken together will constitute a single contract. This Agreement, the other Loan Documents, and any
separate letter agreements with respect to fees payable to the Administrative Agent or any L/C Issuer in
connection with this Agreement constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement will become effective when it will have been
executed by the Administrative Agent and when the Administrative Agent will 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, facsimile or other electronic imaging means (e.g.,
“pdf” or “tif”) will be effective as delivery of a manually executed counterpart of this Agreement.
10.11
Survival of Representations and Warranties
.
All representations and warranties made hereunder and
in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith
or therewith will 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
will continue in full force and effect as long as any Loan or any other Obligation hereunder will remain unpaid
or unsatisfied or any Letter of Credit will remain outstanding.
109
10.12
Severability
.
If any provision of this Agreement or the other Loan Documents 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 will not be affected or impaired thereby and (b) the parties will
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 will not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to
Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative
Agent, the L/C Issuers or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in
effect only to the extent not so limited.
10.13
Replacement of Lenders
.
If any Lender requests compensation under Section 3.04, or if the
Company is required to pay any Indemnified Taxes or additional amounts to any Recipient or any Governmental
Authority for the account of any Recipient pursuant to Section 3.01, or
if any Lender is a Defaulting Lender or a
Non-Consenting Lender or if 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 existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations
under this Agreement and the related Loan Documents to an assignee that will assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Company will have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);
(b) such Lender will 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 3.05) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or
payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such
compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the
applicable assignee shall have consented to the applicable amendment, waiver or consent.
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A Lender will 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.
10.14
Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE COMPANY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION, LITIGATION OR PROCEEDING WILL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT WILL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN
ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
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10.15
Waiver of Jury Trial
.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER 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.
10.16
USA PATRIOT Act Notice
.
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Company that pursuant to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that identifies the Company, which information
includes the name and address of the Company and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Company in accordance with the Act. The Company shall,
promptly following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations, including
the Act.
10.17
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 will 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 the Company in respect of any such sum due from it to the Administrative
Agent or the Lenders hereunder or under the other Loan Documents will, 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 from the Company in the Agreement Currency, the
Company 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 Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to the Company (or to any other
Person who may be entitled thereto under applicable law).
112
10.18
No Advisory or Fiduciary Responsibility
.
In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of
any other Loan Document), the Company acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i)(A) the arranging and other services regarding this Agreement provided by the
Administrative Agent, the Lenders and the Arrangers are arm’s-length commercial transactions between the
Company and its Affiliates, on the one hand, and the Administrative Agent, the Lenders and the Arrangers, on
the other hand, (B) the Company has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and (C) the Company is capable of evaluating, and understands and accepts,
the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents;
(ii) (A) each of the Administrative Agent, the Lenders and the Arrangers is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary for the Company or any of its Affiliates, or any other Person and
(B) neither the Administrative Agent nor any Lender or Arranger has any obligation to the Company or any of
its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lenders and the Arrangers and
their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and its Affiliates, and neither the Administrative Agent nor any Lender or Arranger has
any obligation to disclose any of such interests to the Company or its Affiliates. To the fullest extent permitted
by law, the Company hereby waives and releases any claims that it may have against the Administrative Agent,
the Lenders and any Arranger with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.
10.19
Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding
anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among
any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising
under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and
conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and
agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to
any such liabilities arising hereunder that may be payable to it by any party hereto that is an Affected Financial
Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in
such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it
or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it
in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
113
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and
conversion powers of the applicable Resolution Authority.
10.20
Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents
provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that
is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties
acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance
Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and
Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution
Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the
laws of the State of New York or of the United States or any other state of the United States):
(d) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the
benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such
QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support)
from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S.
Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United States or a state of the United States.
In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a
U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such
Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution
Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a
state of the United States.
(e) As used in this Section 10.20, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted
in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance
with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be
interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
114
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the
date first above written.
STARBUCKS CORPORATION
By:
/s/ Petr Filipovic
Name: Petr Filipovic
Title: vice president, treasurer
Starbucks Corporation
Credit Agreement
Signature Page
BANK OF AMERICA, N.A.,
as
Administrative Agent
By:
/s/ Ronaldo Naval
Name: Ronaldo Naval
Title: Vice President
Starbucks Corporation
Credit Agreement
Signature Page
BANK OF AMERICA, N.A.,
as a Lender,
an L/C Issuer and Swing Line Lender
By:
/s/ Scott Nunez
Name: Scott Nunez
Title: Associate
Starbucks Corporation
Credit Agreement
Signature Page
WELLS FARGO BANK, N.A.
, as a
Lender and an L/C Issuer
By:
/s/ Walker Higgins
Name: Walker Higgins
Title: Vice President
Starbucks Corporation
Credit Agreement
Signature Page
CITIBANK, N.A.
, as a Lender and an L/C
Issuer
By:
/s/ Michael Vondriska
Name: Michael Vondriska
Title: Vice President
Starbucks Corporation
Credit Agreement
Signature Page
U.S. BANK NATIONAL
ASSOCIATION,
as a Lender and an L/C
Issuer
By:
/s/ Joyce P. Dorsett
Name: Joyce P. Dorsett
Title: Senior Vice President
Starbucks Corporation
Credit Agreement
Signature Page
MUFG Bank, LTD,
as a Lender
By:
/s/ Reema Sharma
Name: Reema Sharma
Title: Authorized Signatory
Starbucks Corporation
Credit Agreement
Signature Page
JPMORGAN CHASE BANK, N.A.,
as a
Lender
By:
/s/ Heather Hoopingarner
Name: Heather Hoopingarner
Title: Vice President
Starbucks Corporation
Credit Agreement
Signature Page
THE BANK OF NOVA SCOTIA,
as a
Lender
By:
/s/ Todd Kennedy
Name: Todd Kennedy
Title: Director
Starbucks Corporation
Credit Agreement
Signature Page
GOLDMAN SACHS BANK USA,
as a
Lender
By:
/s/ Jacob Elder
Name: Jacob Elder
Title: Authorized Signatory
Starbucks Corporation
Credit Agreement
Signature Page
HSBC BANK USA, NATIONAL
ASSOCIATION,
as a Lender
By:
/s/ Mary Beth Dam
Name: Mary Beth Dam
Title: SVP, 22710
Starbucks Corporation
Credit Agreement
Signature Page
FIFTH THIRD BANK, NATIONAL
ASSOCIATION,
as a Lender
By:
/s/ Miranda C. Stokes
Name: Miranda C. Stokes
Title: MD, SVP
Starbucks Corporation
Credit Agreement
Signature Page
COOPERATIEVE RABOBANK U.A.,
NEW YORK BRANCH,
as a Lender
By:
/s/ Andre Baladi
Name: Andre Baladi
Title: Managing Director
By:
/s/ Irene Stephens
Name: Irene Stephens
Title: Executive Director
Starbucks Corporation
Credit Agreement
Signature Page
TRUIST BANK,
as a Lender
By:
/s/ Patricia J. Noneman
Name: Patricia J. Noneman
Title: Director
Starbucks Corporation
Credit Agreement
Signature Page
BANK OF CHINA, LOS ANGELES
BRANCH,
as a Lender
By:
/s/ Yong Ou
Name: Yong Ou
Title: SVP & Branch Manager
Starbucks Corporation
Credit Agreement
Signature Page
INDUSTRIAL AND COMMERCIAL
BANK OF CHINA LIMITED, NEW
YORK BRANCH,
as a Lender
By:
/s/ David C. Siegel
Name: David C. Siegel
Title: Director
By:
/s/ Dayi Liu
Name: Dayi Liu
Title: Executive Director
Starbucks Corporation
Credit Agreement
Signature Page
STANDARD CHARTERED BANK,
as a
Lender
By:
/s/ Kristopher Tracy
Name: Kristopher Tracy
Title: Director, Financing Solutions
Starbucks Corporation
Credit Agreement
Signature Page