UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 – Entry into a Material Definitive Agreement
On December 2, 2022 (the “ABL Amendment Effective Date”), Advantage Sales & Marketing Inc. (the “Borrower”), an indirect wholly-owned subsidiary of Advantage Solutions Inc. (the “Company”), together with Karman Intermediate Corp., a Delaware corporation (“Holdings”) and certain of the Borrower’s subsidiaries, entered into the Second Amendment to ABL Revolving Credit Agreement (the “ABL Amendment”), which amends the ABL Revolving Credit Agreement, dated as of October 28, 2020 (as amended, restated, supplemented, extended or otherwise modified prior to the ABL Amendment Effective Date, the “ABL Agreement”; the ABL Agreement, as amended by the ABL Amendment, the “Amended ABL Agreement”), by and among the Borrower, Holdings, the lenders from time to time party thereto and Bank of America, N.A. (“Bank of America”), as administrative agent, and the other parties thereto.
The ABL Amendment was entered into by the Borrower to amend certain terms and provisions of the ABL Agreement, including, among other things:
(i) increasing the aggregate amount of maximum revolving commitments available from $400 million to $500 million;
(ii) replacing the Eurocurrency Rate interest rate metric with a metric based on Term SOFR (as defined in the Amended ABL Agreement), whereby applicable borrowings in United States dollars will bear interest at a floating rate based on Term SOFR plus an applicable margin;
(iii) reducing each applicable interest rate pricing tier based on the Average Historical Excess Availability (as defined in the Amended ABL Agreement) with respect to Term SOFR borrowings, Alternative Currency borrowings, base rate borrowings and Canadian Prime Rate borrowings, in each case for each pricing tier by 0.25% per annum; and
(iv) extending the scheduled maturity date of the borrowings to December 2, 2027.
The foregoing description of the ABL Amendment is only a summary, does not purport to be complete, and is qualified in its entirety by reference to the full text of the ABL Amendment, which is filed as Exhibit 10.1 hereto.
Item 2.03 – Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
The discussion in Item 1.01 is incorporated herein by reference.
Item 7.01 – Regulation FD Disclosure
On December 6, 2022, the Company publicly disclosed an investor presentation on the Investor Relations section of its website (https://ir.advantagesolutions.net/). A copy of the investor presentation is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information being furnished pursuant to this Item 7.01 of this Current Report on Form 8-K, including the accompanying Exhibit 99.1, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 9.01 – Financial Statements and Exhibits
(d) Exhibits
Exhibit No. |
Description | ||
| 10.1† | Second Amendment to ABL Revolving Credit Agreement, dated as of December 2, 2022, by and among the Borrower, Holdings, the guarantors party thereto, the lenders party thereto, the other parties party thereto and Bank of America, as administrative agent. | ||
| 99.1 | Advantage Solutions Inc. Investor Presentation December 2022. | ||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | ||
| † Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request. | |||
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: December 6, 2022
| ADVANTAGE SOLUTIONS INC. | ||||
| By: | /s/ | Brian Stevens | ||
| Brian Stevens | ||||
| Chief Financial Officer and | ||||
| Chief Operating Officer | ||||
Execution Version
SECOND AMENDMENT TO ABL REVOLVING CREDIT AGREEMENT, dated as of December 2, 2022 (this “Amendment”), by and among ADVANTAGE SALES & MARKETING INC., a Delaware corporation (the “Borrower”), KARMAN INTERMEDIATE CORP., a Delaware corporation (“Holdings”), the other Loan Parties party hereto, the Revolving Lenders, the Issuing Banks and the Swing Line Lender party hereto and BANK OF AMERICA, N.A. (“Bank of America”), as Administrative Agent.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower, the Lenders and Issuing Banks from time to time party thereto and Bank of America, as Administrative Agent and Collateral Agent, are party to that certain ABL Revolving Credit Agreement, dated as of October 28, 2020 (as amended by the First Amendment to ABL Revolving Credit Agreement, dated as of October 28, 2021 and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement” and the Credit Agreement as amended by this Amendment, the “Amended Credit Agreement”);
WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended to, among other things, (i) increase the aggregate principal amount of, and extend the maturity of, the Revolving Facility, (ii) reduce the interest rates applicable to the Revolving Facility, (iii) replace the LIBOR-based interest rate applicable to the Revolving Facility with a SOFR-based interest rate and (iv) make certain other amendments to the Existing Credit Agreement, in each case, in accordance with Section 11.01 of the Existing Credit Agreement as further set forth herein, and each of the Persons party hereto as a Revolving Lender (each, a “Revolving Lender”) and/or as an Issuing Bank (each, an “Issuing Bank”) have agreed to such amendments; and
WHEREAS, Bank of America shall act as a lead arranger and bookrunner for this Amendment (in such capacities, and together with any other lead arrangers and bookrunners for this Amendment appointed pursuant to separate documentation entered into prior to the date hereof, the “Amendment No. 2 Lead Arranger”).
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Amended Credit Agreement.
SECTION 2. Amendments. From and after the Amendment No. 2 Effective Date (as defined below):
(a)
The Existing Credit Agreement is, effective as of the Amendment No. 2 Effective Date, hereby amended as set forth in Exhibit
A hereto to insert the language marked as underscored and delete the language marked
as strikethrough;
(b) Schedule 2.01 of the Existing Credit Agreement is, effective as of the Amendment No. 2 Effective Date, hereby amended and restated in its entirety as set forth on Schedule I hereto; and
(c) Exhibits A-1, A-3 and A-4 of the Existing Credit Agreement are hereby amended and restated in their entirety as set forth in Exhibit B hereto.
(d) For the avoidance of doubt, no notice of incremental borrowing, minimum borrowing, pro rata borrowing, minimum prepayment and pro rata payment requirements contained in the Amended Credit Agreement shall apply to the transactions contemplated herein.
SECTION 3. Reallocation; Payment of Interest and Fees. On the Amendment No. 2 Effective Date, (a) the Borrower shall pay to the Administrative Agent, for the account of each of the Revolving Lenders under the Existing Credit Agreement (each, an “Existing Lender”), all accrued fees and interest under the Existing Credit Agreement to, and not including, the Amendment No. 2 Effective Date, (b) each Existing Lender will, to the extent applicable, automatically and without further act be deemed to have assigned to each Revolving Lender party hereto, and each Revolving Lender party hereto will, to the extent applicable, automatically and without further act be deemed to have assumed, a portion of such Existing Lender’s participations under the Existing Credit Agreement in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans, in each case held by each Revolving Lender party hereto will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitments as set forth on Schedule I hereto and (c) if there any Revolving Loans outstanding under the Existing Credit Agreement, such Revolving Loans shall be prepaid from the proceeds of a borrowing of Revolving Loans under the Amended Credit Agreement.
SECTION 4. Representation & Warranties. In order to induce the Revolving Lenders and the Administrative Agent to enter into this Amendment, each Loan Party hereby represents and warrants to the Revolving Lenders and the Administrative Agent that:
(a) The representations and warranties of such Loan Party contained in Article V of the Amended Credit Agreement or any other Loan Document are true and correct in all material respects on and as of the date of the Amendment No. 2 Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates. For purposes of this Section 4(a), the representations and warranties contained in Section 5.05(a) of the Amended Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b) of the Amended Credit Agreement, respectively.
(b) No Default or Event of Default has occurred and is continuing on the Amendment No. 2 Effective Date (immediately prior to giving effect to this Amendment) or would result immediately after giving effect to this Amendment.
(c) This Amendment has been duly executed and delivered by each Loan Party that is party hereto and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws and by general principles of equity and principles of good faith and fair dealing.
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(d) The execution, delivery and performance by such Loan Party of this Amendment (i) has been duly authorized by all necessary corporate or other organizational action of such Loan Party and (ii) does not (w) contravene the terms of any of its Organization Documents, (x) result in any breach or contravention of, or the creation of any Lien (other than a Permitted Lien) upon any assets of such Loan Party or any Restricted Subsidiary, under (A) any Contractual Obligation relating to Material Indebtedness or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject, (y) violate any applicable Law or (z) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation relating to Material Indebtedness, except for such approvals or consents which will be obtained on or before the Amendment No. 2 Effective Date, except with respect to any breach, contravention or violation (but not creation of Liens) referred to in clauses (x), (y) and (z) above, to the extent that such breach, contravention or violation has not resulted in, or is not reasonably expected, individually or in the aggregate, to result in a Material Adverse Effect.
SECTION 5. Conditions to Effectiveness of Amendment. The effectiveness of the amendments set forth in Section 2 above and the reallocation described in Section 3 above is subject to satisfaction of the following conditions precedent (the date of such satisfaction being the “Amendment No. 2 Effective Date”):
(a) The Administrative Agent shall have received (i) counterparts of this Agreement executed by a Responsible Officer of each Loan Party and a duly authorized officer of each Revolving Lender and Issuing Bank listed on Schedule I hereto and (ii) for the account of each Revolving Lender requesting a Note, a Note executed by a Responsible Officer of the Borrower.
(b) The Borrower shall have paid to (i) the Administrative Agent and the Amendment No. 2 Lead Arranger all fees required to be paid under separate documentation entered into in respect of this Amendment on or prior to the date hereof and (ii) the Administrative Agent all reasonable and documented out-of-pocket expenses of the Administrative Agent (including, without limitation, legal fees and expenses of Cahill Gordon & Reindel LLP and Norton Rose Fulbright Canada LLP) incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any, in each case to the extent invoiced at least 2 Business Days prior to the Amendment No. 2 Effective Date.
(c) The Administrative Agent shall have received a certificate from a Responsible Officer of each Loan Party dated the Amendment No. 2 Effective Date, certifying as to the (A) Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), (B) certificates of good standing, or its equivalent, from the secretary of state or other applicable office of the jurisdiction of organization or formation of each Loan Party if applicable in the relevant jurisdiction, (C) resolutions or other applicable action of each Loan Party and (D) an incumbency certificate and/or other certificate of Responsible Officers of each Loan Party, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which it is a party or is to be a party on the Amendment No. 2 Effective Date.
(d) The Administrative Agent shall have received an opinion from the following special counsel to the Loan Parties (or certain of the Loan Parties): (A) Shearman & Sterling LLP, with respect to matters of New York and certain aspects of Delaware law, (B) Finn Dixon & Herling LLP, with respect to matters of Connecticut law and (C) Blake, Cassels & Graydon LLP, with respect to matters of Ontario law.
(e) The Administrative Agent shall have received a certificate from the chief financial officer or other officer with equivalent duties of the Borrower as to the Solvency (after giving effect to the Amendment No. 2 Effective Date) of the Borrower substantially in the form of Exhibit I to the Amended Credit Agreement.
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(f) Each of the representations and warranties of the Loan Parties contained in Section 4 of this Amendment and Article V of the Amended Credit Agreement and any other Loan Document are true and correct in all material respects on and as of the Amendment No. 2 Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) No Default or Event of Default shall have occurred and be continuing on (immediately prior to giving effect to this Amendment), or would result immediately after, giving effect to this Amendment.
(h) The Administrative Agent shall have received a certificate of the Borrower, dated the Amendment No.2 Effective Date, executed by a Responsible Officer of the Borrower certifying compliance with the requirements set forth in clauses (f) and (g) of this Section 5.
(i) The Revolving Lenders shall have received at least three (3) Business Days prior to the Amendment No. 2 Effective Date (i) all documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” a Beneficial Ownership Certification, that in each case has been requested in writing at least ten (10) Business Days prior to the Amendment No. 2 Effective Date.
(j) The Borrower shall have paid to all Revolving Lenders (under and as defined in the Existing Credit Agreement) the amounts described in Section 3(a) above.
(k) The Administrative Agent shall have received a Committed Loan Notice as required by Section 2.01 of the Amended Credit Agreement.
SECTION 6. Effects on Loan Documents.
(a) On and after the effectiveness of this Amendment, each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and each reference in the Amended Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement.
(b) Except as specifically amended hereby, the terms and provisions of the Existing Credit Agreement and each other Loan Document shall remain in full force and effect. Each of the Loan Parties hereby (a) confirms and ratifies (i) all of its obligations under the Loan Documents to which it is a party, (ii) all of its guarantees under the Guaranty and (iii) all of its prior pledges and grants of security interests and Liens under the Collateral Documents to which it is a party and (b) confirms and agrees that (i) all such security interests and Liens shall continue in full force and effect in favor of the Administrative Agent, as “Collateral Agent” for the benefit of the Secured Parties, to secure the Secured Obligations after giving effect to this Amendment and (ii) all references in the Loan Documents to the “Credit Agreement” (or words of similar import) refer to the Amended Credit Agreement without impairing any such guarantees, pledges and grants of security interests in any respect after giving effect to this Amendment.
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Without limiting the foregoing, each of the Loan Parties further (i) hereby agrees that, immediately after giving effect to this Amendment and any transactions contemplated to be consummated on the Amendment No. 2 Effective Date, all guarantees, pledges and grants of security interests, as applicable, under the Loan Documents (as in effect immediately prior to the Amendment No. 2 Effective Date) shall continue to be in full force and effect and are made and reaffirmed as of the Amendment No. 2 Effective Date and shall continue to inure to the benefit of the Lenders and the other Secured Parties under the Collateral Documents, and, to the extent it is the issuer of shares of stock, membership interests, or other Equity Interests that are pledged to the Collateral Agent under and pursuant to any Collateral Document, in its capacity as issuer thereof, hereby consents to and ratifies such pledge and (ii) hereby ratifies, confirms and agrees that all Liens granted, conveyed, or assigned by such Person pursuant to any Collateral Document to which it is a party remain in full force and effect, are not released or reduced, and immediately after giving effect to this Amendment and any transactions contemplated to be consummated on the Amendment No. 2 Effective Date, continue in favor of the Administrative Agent, as “Collateral Agent” for the benefit of the Secured Parties, to secure full payment and performance of the Secured Obligations and such Liens continue unimpaired with the same priority to secure repayment of such Secured Obligations whether heretofore or hereafter incurred and no new filings are required to be made and no other action is required to be taken to perfect or to maintain the perfection of such Liens.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. This Amendment and the Amended Credit Agreement shall not constitute a novation of the Credit Agreement or the other Loan Documents.
(d) The Borrower and the other parties hereto acknowledge and agree that, on and after the Amendment No. 2 Effective Date, this Amendment shall constitute a Loan Document for all purposes of the Amended Credit Agreement.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Miscellaneous.
(a) This Amendment shall be binding upon and inure to the benefit of the Loan Parties and their respective successors and permitted assigns, and upon the Administrative Agent and the Lenders and their respective successors and permitted assigns.
(b) To the extent permitted by applicable requirements of law, any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
(c) Sections 11.04, 11.05, 11.08, 11.15(b), 11.15(c), 11.16 and 11.17 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.
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(d) This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and words of like import in or related to this Amendment or any other document to be signed in connection with this Amendment shall be deemed to include electronic signatures, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment as of the date first above written.
ADVANTAGE SALES & MARKETING INC., as Borrower
By: /s/Robert Murray_______________
Name: Robert Murray
Title: Treasurer
KARMAN INTERMEDIATE CORP., as Holdings
By: /s/Robert Murray_______________
Name: Robert Murray
Title: Treasurer
ADVANTAGE SALES & MARKETING LLC
ADVANTAGE WAYPOINT LLC
ADVANTAGE AMP LLC
UPSHOT LLC
MARLIN NETWORK LLC
INTERACTIONS CONSUMER EXPERIENCE MARKETING INC.
DAYMON EAGLE HOLDINGS, LLC
R SQUARED SOLUTIONS LLC
DAYMON WORLDWIDE INC.
CLUB DEMONSTRATION SERVICES, INC.
JUN GROUP PRODUCTIONS, LLC
SAS RETAIL SERVICES, LLC
QUANTUM ADV LLC
ADVANTAGE QUIVERR LLC
IN-STORE OPPORTUNITIES, LLC
EVENTUS MARKETING LLC
ADVANTAGE CONSUMER HEALTHCARE LLC
THE DATA COUNCIL LLC
HALVERSON CONSULTING LLC
THE RETAIL ODYSSEY COMPANY LLC
ADVANTAGE SOLUTIONS INC.
DAYMON WORLDWIDE CANADA INC.
ADVANTAGE BEVERAGE SOLUTIONS LLC
ADVANTAGE ABS HOLDINGS LLC
ADVANTAGE ABS LLC
HYPRMX MOBILE LLC
IDR MARKETING PARTNERS, LLC
By: /s/Robert Murray_______________
Name: Robert Murray
Title: Treasurer
ADVANTAGE SALES LLC
By: /s/ Daniel T. Dougherty
Name: Daniel T. Dougherty
Title: Senior Vice President & General Manager
[Signature Page to Second Amendment to ABL Revolving Credit Agreement] |
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Ron Bornstein
Name: Ron Bornstein
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as Revolving Lender, Swing Line Lender and Issuing Bank
By: /s/ Ron Bornstein
Name: Ron Bornstein
Title: Senior Vice President
BANK OF AMERICA, N.A.
(acting through its Canada branch),
as Swing Line Lender
By: /s/ Sylwia Durkiewicz
Name: Sylwia Durkiewicz
Title: Vice President
[Signature Page to Second Amendment to ABL Revolving Credit Agreement] |
MUFG Union Bank N.A.,
as Revolving Lender and Issuing Bank
By: /s/ Ryan Bannan
Name: Ryan Bannan
Title: Vice President
PNC Bank, National Association,
as Revolving Lender and Issuing Bank
By: /s/ Albert Sarkis
Name: Albert Sarkis
Title: Senior Vice President
Wells Fargo Bank, National Association,
as Revolving Lender and Issuing Bank
By: /s/ Lydia Gouhin
Name: Lydia Gouhin
Title: Assistant Vice President
Wells Fargo Capital Finance Corporation Canada
as Revolving Lender and Issuing Bank
By: /s/ Carmela Massari
Name: Carmela Massari
Title:
[Signature Page to Second Amendment to ABL Revolving Credit Agreement] |
U.S. BANK NATIONAL ASSOCIATION,
as Revolving Lender and Issuing Bank
By: /s/ William Patton
Name: William Patton
Title: Vice President
NYCB SPECIALTY FINANCE COMPANY, LLC,
a wholly owned subsidiary of New York Community Bank, as Revolving Lender
By: /s/ Willard Dickerson
Name: Willard Dickerson
Title: Senior Vice President
TD BANK, NA,
as Revolving Lender
By: /s/ Donald J. Cavanagh
Name: Donald J. Cavanagh
Title: Vice President
Zions Bancorporation, N.A.
(dba California Bank & Trust)
as Revolving Lender and Issuing Bank
By: /s/ Lars Hens
Name: Lars Hens
Title: EVP
[Signature Page to Second Amendment to ABL Revolving Credit Agreement] |
DEUTSCHE BANK AG NEW YORK BRANCH,
as Revolving Lender and Issuing Bank
By: /s/ Jessica Lutrario
Name: Jessica Lutrario
Title: Associate
jessica.lutrario@db.com
212-250-8235
By: /s/ Philip Tancorra
Name: Philip Tancorra
Title: Vice President
philip.tancorra@db.com
212-250-6576
[Signature Page to Second Amendment to ABL Revolving Credit Agreement] |
EXHIBIT A
ABL REVOLVING CREDIT AGREEMENT
dated as of October 28, 2020
as
amended by the First Amendment, dated as of October 28, 2021
and as further amended by the Second Amendment, dated as of December 2, 2022
by and among
ADVANTAGE SALES & MARKETING INC.,
as the Borrower
KARMAN INTERMEDIATE CORP.,
as Holdings
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
and
THE LENDERS PARTY HERETO
________________
BANK OF AMERICA, N.A.,
MORGAN STANLEY SENIOR FUNDING, INC.,
DEUTSCHE BANK SECURITIES INC.,
PNC BANK, NATIONAL ASSOCIATION,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
MUFG UNION BANK, N.A.,
and
U.S. BANK NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners,
MORGAN STANLEY SENIOR FUNDING,
INC.,
and
DEUTSCHE BANK SECURITIES INC.,
as Co-Syndication Agents
BANK
OF AMERICA, N.A.,
MUFG UNION BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION, and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Amendment No. 2 Lead Arrangers and Bookrunners,
BANK
OF AMERICA, N.A.,
MUFG UNION BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION, and
WELLS FARGO and
U.S. BANK,
NATIONAL ASSOCIATION,
as Co-Documentation Agents
TABLE OF CONTENTS
Page
ARTICLE
I
Definitions and Accounting Terms
SECTION 1.01 Defined
Terms 22
SECTION 1.02 Other
Interpretive Provisions 7179
SECTION 1.03 Accounting
and Finance Terms; Accounting Periods; Unrestricted Subsidiaries; Determination of Fair Market Value 7381
SECTION 1.04 Rounding 7381
SECTION 1.05 References
to Agreements, Laws, Etc. 7481
SECTION 1.06 Times
of Day 7481
SECTION 1.07 [Reserved]Interest
Rates 7482
SECTION 1.08 Pro
Forma Calculations; Limited Condition Transactions; Basket and Ratio Compliance. 7482
SECTION 1.09 Currency
Equivalents Generally. 7785
SECTION 1.10 Co-Borrowers 7886
ARTICLE
II
The Commitments and Borrowings
SECTION 2.01 Revolving
Loans 7987
SECTION 2.02 Protective
Advances. 8189
SECTION 2.03 Swing
Line Loans. 8290
SECTION 2.04 Issuance
of Letters of Credit and Purchase of Participations Therein. 8593
SECTION 2.05 Conversion/Continuation. 93102
SECTION 2.06 Availability 94103
SECTION 2.07 Prepayments. 95103
SECTION 2.08 Termination
or Reduction of Commitments. 98106
SECTION 2.09 Repayment
of Loans. 98107
SECTION 2.10 Interest. 99107
SECTION 2.11 Fees. 100108
SECTION 2.12 Computation
of Interest and Fees 101110
SECTION 2.13 Evidence
of Indebtedness. 101110
SECTION 2.14 Payments
Generally. 102111
SECTION 2.15 Sharing
of Payments, Etc. 103113
SECTION 2.16 Incremental
Borrowings. 104113
SECTION 2.17 [Reserved]. 106115
SECTION 2.18 Extensions
of Loans. 106115
SECTION 2.19 Defaulting
Lenders. 108118
SECTION 2.20 [Reserved]. 111121
SECTION 2.21 Judgment
Currency. 111121
SECTION 2.22 Reserves;
Changes to Eligibility Criteria 112122
SECTION 2.23 Currency
Equivalents. 113122
ARTICLE
III
Taxes, Increased Costs Protection and Illegality
SECTION 3.01 Taxes. 113123
SECTION 3.02 Illegality 117127
SECTION 3.03 Inability
to Determine Rates 118128
SECTION 3.04 Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans 119. 133
SECTION 3.05 Funding
Losses 121134
SECTION 3.06 Matters
Applicable to All Requests for Compensation. 121135
SECTION 3.07 Replacement
of Lenders Under Certain Circumstances 122136
SECTION 3.08 Survival 123137
ARTICLE
IV
Conditions Precedent to Borrowings
SECTION 4.01 Conditions
to Initial Borrowing 123137
SECTION 4.02 Conditions
to All Borrowings After the Closing Date 126140
ARTICLE
V
Representations and Warranties
SECTION 5.01 Existence,
Qualification and Power; Compliance with Laws 127141
SECTION 5.02 Authorization;
No Contravention. 128142
SECTION 5.03 Governmental
Authorization 128142
SECTION 5.04 Binding
Effect 129143
SECTION 5.05 Financial
Statements; No Material Adverse Effect. 129143
SECTION 5.06 Litigation 129143
SECTION 5.07 Labor
Matters 129143
SECTION 5.08 Ownership
of Property; Liens 129144
SECTION 5.09 Environmental
Matters. 130144
SECTION 5.10 Taxes 130144
SECTION 5.11 ERISA
Compliance 130;
Pension Plans. 144
SECTION 5.12 Subsidiaries 131145
SECTION 5.13 Margin
Regulations; Investment Company Act; EU Bail-In 131. 145
SECTION 5.14 Disclosure 131145
SECTION 5.15 Intellectual
Property; Licenses, Etc. 131146
SECTION 5.16 Solvency 131146
SECTION 5.17 USA
Patriot Act, FCPA and OFAC. 132146
SECTION 5.18 Collateral
Documents 132147
SECTION 5.19 Use
of Proceeds 132147
SECTION 5.20 Borrowing
Base Certificate 132147
ARTICLE
VI
Affirmative Covenants
SECTION 6.01 Financial
Statements 133147
SECTION 6.02 Certificates;
Other Information 134148
SECTION 6.03 Notices 136151
SECTION 6.04 Payment
of Certain Taxes 137151
SECTION 6.05 Preservation
of Existence, Etc. 137151
SECTION 6.06 Maintenance
of Properties 137152
SECTION 6.07 Maintenance
of Insurance 137152
SECTION 6.08 Compliance
with Laws 138153
SECTION 6.09 Books
and Records 138153
SECTION 6.10 Inspection
Rights 138153
SECTION 6.11 Covenant
to Guarantee Obligations and Give Security. 139154
SECTION 6.12 Further
Assurances 140155
SECTION 6.13 Designation
of Subsidiaries 142156
SECTION 6.14 [Reserved] 142157
SECTION 6.15 Post-Closing
Matters 142157
SECTION 6.16 Use
of Proceeds. 142157
SECTION 6.17 Change
in Nature of Business 143157
SECTION 6.18 Cash
Receipts. 143157
ARTICLE
VII
Negative Covenants
SECTION 7.01 Liens 145160
SECTION 7.02 Investments 150166
SECTION 7.03 Indebtedness 154169
SECTION 7.04 Fundamental
Changes 158173
SECTION 7.05 Dispositions 160176
SECTION 7.06 Restricted
Payments 163179
SECTION 7.07 Transactions
with Affiliates 167183
SECTION 7.08 Negative
Pledge 169185
SECTION 7.09 Junior
Debt Prepayments; Amendments to Junior Financing Documents. 170187
.SECTION
7.10 Passive Holding Company. 172188
SECTION 7.11 Changes in Fiscal Year 190
ARTICLE
VIII
Financial Covenant
SECTION 8.01 Fixed
Charge Coverage Ratio 174191
SECTION 8.02 Borrower’s
Right to Cure 174191
ARTICLE
IX
Events of Default and Remedies
SECTION 9.01 Events
of Default 175191
SECTION 9.02 Remedies
upon Event of Default. 177194
SECTION 9.03 Application
of Funds 178195
ARTICLE
X
Administrative Agent and Other Agents
SECTION 10.01 Appointment
and Authority of the Administrative Agent. 179196
SECTION 10.02 Rights
as a Lender 181198
SECTION 10.03 Exculpatory
Provisions 181198
SECTION 10.04 Reliance
by the Agents 182199
SECTION 10.05 Delegation
of Duties 183200
SECTION 10.06 Non-Reliance
on Agents and Other Lenders; Disclosure of Information by Agents. 183200
SECTION 10.07 Indemnification
of Agents 184202
SECTION 10.08 No
Other Duties; Other Agents, Lead Arrangers, Managers, Etc. 185202
SECTION 10.09 Resignation
of Administrative Agent or Collateral Agent 186203
SECTION 10.10 Administrative
Agent May File Proofs of Claim; Credit Bidding 186204
SECTION 10.11 Collateral
and Guaranty Matters. 188205
SECTION 10.12 Appointment
of Supplemental Administrative Agents. 191209
SECTION 10.13 Intercreditor
Agreements 192210
SECTION 10.14 Secured
Cash Management Agreements and Secured Hedge Agreements 193210
SECTION 10.15 Withholding
Taxes 193210
SECTION 10.16 Certain
ERISA Matters 193211
SECTION 10.17 Recovery of Erroneous Payments 212
ARTICLE
XI
Miscellaneous
SECTION 11.01 Amendments,
Waivers, Etc. 194212
SECTION 11.02 Notices
and Other Communications; Facsimile Copies. 199215
SECTION 11.03 No
Waiver; Cumulative Remedies 201218
SECTION 11.04 Attorney
Costs and Expenses 202218
SECTION 11.05 Indemnification
by the Borrower 202219
SECTION 11.06 Marshaling;
Payments Set Aside 204221
SECTION 11.07 Successors
and Assigns. 204221
SECTION 11.08 Confidentiality 210226
SECTION 11.09 Set-off 211228
SECTION 11.10 Interest
Rate Limitation 212229
SECTION 11.11 Counterparts;
Integration; Effectiveness 212229
SECTION 11.12 Electronic
Execution of Assignments and Certain Other Documents 212229
SECTION 11.13 Survival 213230
SECTION 11.14 Severability 213230
SECTION 11.15 GOVERNING
LAW. 213230
SECTION 11.16 WAIVER
OF RIGHT TO TRIAL BY JURY 214232
SECTION 11.17 Limitation
of Liability 215232
SECTION 11.18 Use
of Name, Logo, Etc. 215232
SECTION 11.19 USA
PATRIOT Act Notice 215232
SECTION 11.20 Service
of Process 216233
SECTION 11.21 No
Advisory or Fiduciary Responsibility 216233
SECTION 11.22 Binding
Effect 216233
SECTION 11.23 Obligations
Several; Independent Nature of Lender’s Rights 217234
SECTION 11.24 Headings 217234
SECTION 11.25 Acknowledgement
and Consent to Bail-In of EEAAffected
Financial Institutions. 217234
SECTION 11.26 Acknowledgement
Regarding Any Supported QFCs. 217234
SECTION 11.27 Disqualified
Lenders. 218235
SCHEDULES
2.01 Commitments
2.04 Existing Letters of Credit
5.06 Litigation
5.07 Labor Matters
5.11(a) ERISA Compliance
5.11(b) ERISA Compliance
5.12 Subsidiaries
6.15 Post-Closing Matters
6.18 Cash Receipts
11.02 Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
Form of
A-1 Committed Loan Notice
A-2 Issuance Notice
A-3 Conversion/Continuation Notice
A-4 Swing Line Notice
B-1 Revolving Loan Note
B-2 Swing Line Note
C Compliance Certificate
D Assignment and Assumption
E Guaranty
F Security Agreement
G Non-Bank Certificate
H Global Intercompany Note
I Solvency Certificate
J Prepayment Notice
K Borrowing Base Certificate
ABL REVOLVING CREDIT AGREEMENT
This ABL REVOLVING CREDIT AGREEMENT is entered into as of October 28, 2020, as amended by the First Amendment to ABL Revolving Credit Agreement, dated as of October 28, 2021, and as further amended by the Second Amendment to ABL Revolving Credit Agreement, dated as of December 2, 2022, by and among ADVANTAGE SALES & MARKETING INC., a Delaware corporation (the “Borrower”), KARMAN INTERMEDIATE CORP., a Delaware corporation (“Holdings”), BANK OF AMERICA, N.A. (“BANA”), as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) and as collateral agent (in such capacity, including any successor thereto, the “Collateral Agent”) under the Loan Documents, each Issuing Bank from time to time party hereto, each financial institution listed on the signature pages hereto as an Agent, the financial institutions set forth on the cover of this Agreement as joint lead arrangers and joint bookrunners (collectively with the Amendment No. 2 Lead Arrangers and Bookrunners, the “Lead Arrangers”), and each lender from time to time party hereto (collectively, the “Lenders” and, individually, a “Lender”). Capitalized terms used herein are defined as set forth in Section 1.01.
PRELIMINARY STATEMENTS
Pursuant to the Acquisition Agreement (as this
and other capitalized terms used in these preliminary statements are defined in Section 1.01 below), the Buyer will,
directly or indirectly, acquireacquired Advantage
Solutions Inc., a Delaware corporation, of which the Borrower (together with Advantage Solutions Inc. and its subsidiaries, the “Acquired
Business”) is an indirect wholly-owned subsidiary (the “Acquisition”).
The Borrower has requested that from time to time (including on the Closing Date substantially simultaneously with the consummation of the Acquisition and upon satisfaction (or waiver) of the conditions precedent set forth in Article IV below), the Revolving Lenders make Revolving Loans, the Swing Line Lender to make Swing Line Loans and the Issuing Banks issue Letters of Credit, pursuant to the terms of this Agreement.
On the Closing Date, the Borrower, as “issuer,”,
will enter entered into the Senior Secured Notes
Indenture pursuant to which the Borrower will issueissued
the Senior Secured Notes in an initial aggregate principal amount of $775,000,000.
On the Closing Date, the Borrower will
enterentered into the Term Loan Credit Agreement
pursuant to which the Term Loan Lenders will extendextended
credit to the Borrower in the form of Initial Dollar Term Loans in an aggregate principal amount of $1,325,000,000.
On or prior to the Closing Date, the SPAC, the
Sponsors, Company Persons and other co-investors will, directly or indirectly makemade
the Equity Contribution.
On the Closing Date, the Borrower will
repayrepaid (or causecaused
to be repaid) all outstanding Indebtedness (the “Existing Indebtedness”) under, terminateterminated
any commitments under, and causecaused
to be released any contractual Liens securing obligations under the Existing Indebtedness Documents (such repayment, termination and release,
collectively, the “Closing Date Refinancing”).
The proceeds of the borrowings hereunder permitted on the Closing Date, together with the proceeds of the Initial Term Loans, the Senior Secured Notes, the Equity Contribution and cash on hand at the Borrower and its Subsidiaries will be used to finance the Transactions, for working capital purposes and to finance transactions not prohibited by this Agreement.
The applicable Lenders have indicated their willingness to lend, and each Issuing Bank has indicated its willingness to issue Letters of Credit, in each case on the terms and subject to the 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
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings set forth below:
“ABL Priority Collateral” means the “ABL Collateral” as defined in the Closing Date ABL Intercreditor Agreement.
“Account” has the meaning assigned to such term in the Security Agreement or the Canadian Security Agreement, as applicable.
“Account Debtor” means any Person obligated on an Account.
“Accounts Receivable Component” means (i) the face amount of Eligible Accounts Receivable (other than Eligible Unbilled Accounts Receivable) the Account Debtors for which have an Investment Grade Rating multiplied by 90.0%; (ii) the face amount of Eligible Accounts Receivable (other than Eligible Unbilled Accounts Receivable) the Account Debtors for which do not have an Investment Grade Rating multiplied by 85.0%; and (iii) the face amount of Eligible Unbilled Accounts Receivable multiplied by 75.0%; provided, that, the face amount of Eligible Accounts Unbilled Receivable calculated pursuant to this clause (iii) and included in the Borrowing Base shall not exceed 30% of the Borrowing Base at any time.
“Acquired Borrowing Base”
has the meaning specified in the definition of “Eligible Accounts Receivable”.”
“Acquired Business” has the meaning specified in the preliminary statements to this Agreement.
“Acquisition Agreement” means the Agreement and Plan of Merger, dated as of September 14, 2020, among CP II Merger Sub Inc., a Delaware corporation, Conyers Park II Acquisition Corp., a Delaware corporation, Advantage Solutions Inc., a Delaware corporation and Karman Topco, L.P., a Delaware limited partnership, as amended, restated, modified or supplemented from time to time in accordance with the terms of the Commitment Letter.
“Acquisition Agreement Representations” means such of the representations and warranties made by the Acquired Business with respect to the Acquired Business in the Acquisition Agreement to the extent a breach of such representations and warranties is material to the interests of the Lenders (in their capacities as such).
“Acquisition Transaction” means the purchase or other acquisition (in one transaction or a series of transactions, including by merger, amalgamation or otherwise) by the Borrower or any Restricted Subsidiary of all or substantially all the property, assets or business of another Person, or assets constituting a business unit, line of business or division of, any Person, or of a majority of the outstanding Equity Interests of any Person (including any Investment which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in any Joint Venture or other Person to an amount in excess (or further in excess) of the majority of the outstanding Equity Interests of such Joint Venture or other Person).
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“Additional Lender” means, at any time, any bank, other financial institution or institutional investor that, in any case, is not an existing Lender and that agrees to provide any portion of any Incremental Loan in accordance with Section 2.16; provided that each Additional Lender (other than any Person that is a Lender, an Affiliate of a Lender or an Approved Fund of a Lender at such time) shall be subject to the approval of the Administrative Agent, the Swing Line Lender and/or the Issuing Banks (such approval not to be unreasonably withheld, conditioned or delayed), in each case to the extent any such consent would be required from the Administrative Agent, the Swing Line Lender and/or the Issuing Banks under Section 11.07(b)(iii)(B), (C), and/or (D), respectively, for an assignment of Loans to such Additional Lender.
“Adjusted
Eurocurrency Rate” means, with respect to any Borrowing of Eurocurrency Rate Loans based on clause (a)
of the definition of “Eurocurrency Rate” for any Interest Period, an interest rate per annum equal to
the Eurocurrency Rate based on clause (a) of the definition of “Eurocurrency Rate”
for such Interest Period multiplied by the Statutory Reserve Rate; provided that,
notwithstanding the foregoing, the “Adjusted Eurocurrency Rate” shall in no event be less than 0.00% per annum.
The Adjusted Eurocurrency Rate will be adjusted automatically as to all Borrowings of Eurocurrency Rate Loans based on clause
(a) of the definition of “Eurocurrency Rate” then outstanding as of the effective date of any
change in the Statutory Reserve Rate.
“Adjustment Date” means the first day of each January, April, July and October, as applicable.
“Administrative Agent” has the meaning specified in the introductory paragraph to this Agreement.
“Administrative Agent Account” has the meaning specified in Section 6.18(c).
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower 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. “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. “Controlled” has the meaning correlative thereto. For the avoidance of doubt, none of the Lead Arrangers, the Agents or their respective lending affiliates shall be deemed to be an Affiliate of the Loan Parties or any of the Restricted Subsidiaries.
“Agent Parties” has the meaning specified in Section 11.02(e).
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“Agent-Related Persons” means the Agents, together with their respective Affiliates and branches, and the officers, directors, shareholders, employees, agents, attorney-in-fact, partners, trustees, advisors and other representatives of such Persons and of such Persons’ Affiliates and branches.
“Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Joint Bookrunners, the Supplemental Administrative Agents (if any) and the Lead Arrangers.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreed Currency” means Dollars or any Alternative Currency, as applicable.
“Agreement” means this Credit Agreement, as amended, restated, modified or supplemented from time to time in accordance with the terms hereof.
“Agreement Currency” has the meaning specified in Section 2.21(b).
“AHYDO Catch Up Payment” has the meaning specified in Section 7.09(a)(viii).
“Alternative Currencies”
means, (a) in the case of Revolving Loans, Incremental Revolving
Facilities, Extended Revolving Loans and Letters of Credit, (a) Canadian Dollars and (b) any otherany
currency agreed to by the Administrative Agent, the Borrower and each Revolving Lender providing such Revolving Loans, Incremental Revolving
Facilities or Extended Revolving Loans; provided that, in
the case of clause (ba)
of this definition, each such other currency is a lawful currency that is readily available, freely transferable and not restricted, able
to be converted into Dollars and available in the London interbank deposit market or other applicable offshore interbank market and
(b) in the case of Swing Line Loans, Canadian Dollars.
“Alternative Currency Daily Rate” means, for any day, with respect to any Credit Extension:
(a) denominated in Canadian Dollars, the rate per annum equal to the Canadian Prime Rate; and
(b) denominated in any Alternative Currency (other than Canadian Dollars) (to the extent such Loans denominated in such currency will bear interest at a daily rate), the daily rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to clause (b) of the definition of “Alternative Currencies” plus the adjustment (if any) determined by the Administrative Agent and such relevant Lenders;
provided, that, if any Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative Currency Daily Rate shall be effective from and including the date of such change without further notice.
“Alternative Currency Daily Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate.” All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.
“Alternative Currency Loan” means an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.
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“Alternative Currency Term Rate” means, for any Interest Period, with respect to any Credit Extension denominated in any Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a term rate), the term rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to clause (a) of the definition of “Alternative Currencies” plus the adjustment (if any) determined by the Administrative Agent and such relevant Lenders; provided, that, if any Alternative Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Alternative Currency Term Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate.” All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.
“Amendment No. 1” means the First Amendment to ABL Revolving Credit Agreement, dated as of October 28, 2021, by and among the Borrower, Holdings, the Lenders party thereto and the Administrative Agent.
“Amendment No. 2” means the Second Amendment to ABL Revolving Credit Agreement, dated as of December 2, 2022, by and among the Borrower, Holdings, the other Loan Parties party thereto, the Issuing Banks and Lenders party thereto and the Administrative Agent.
“Amendment No. 2 Effective Date” shall have the meaning assigned to such term in Amendment No. 2. The Amendment No. 2 Effective Date shall be December 2, 2022.
“Amendment No. 2 Lead Arrangers and Bookrunners” means Bank of America, N.A., MUFG Union Bank, N.A., PNC Bank, National Association and Wells Fargo Bank, National Association, each as a lead arranger and bookrunner for Amendment No. 2.
“Annual Financial Statements” means the audited consolidated balance sheets of Advantage Solutions Inc. as of December 31, 2019, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows for the Borrower for the fiscal year then ended.
“Applicable Authority” means (a) with respect to SOFR, the SOFR Administrator or any Governmental Authority having jurisdiction over the Administrative Agent or the SOFR Administrator with respect to its publication of SOFR, in each case acting in such capacity and (b) with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of the applicable Relevant Rate, in each case acting in such capacity.
“Applicable Creditor” has the meaning specified in Section 2.21(b).
“Applicable Decimal Place” has the meaning specified in Section 1.04.
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“Applicable Commitment
Fee” means a percentage per annum that shall be equal to,
(a)
(a) for each day from the ClosingAmendment
No. 2 Effective Date until the last day of the first full fiscal quarter completed after the ClosingAmendment
No. 2 Effective Date, 0.375% per annum, and
(b) (b) thereafter,
for each Fiscal Quarter or portion thereof, the applicable rate per annum set forth below under the caption “Applicable Commitment
Fee” based upon the Average Usage for the preceding Fiscal Quarter then-ended:
|
Category |
Average Usage |
Applicable |
| Category 1 | Less than 50% | 0.375% |
| Category 2 | Greater than or equal to 50% | 0.25% |
provided that the Applicable Commitment Fee shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the Average Usage in accordance with the table above.
“Applicable Indebtedness” has the meaning specified in the definition of “Weighted Average Life to Maturity.”
“Applicable Rate” means:
(a) for
any day from the ClosingAmendment
No. 2 Effective Date until the last day of the firstsecond
full fiscal quarter completed after the ClosingAmendment
No. 2 Effective Date, a percentage per annum equal to, (i) for Eurocurrency Rate
LoansTerm SOFR Loans and Alternative Currency Loans (other
than Alternative Currency Loans denominated in Canadian Dollars), 2.25%,
and (ii) for Base Rate Loans and Canadian Prime Rate Loans,
1.25%;
(b) thereafter,
for any day, (i) for Term SOFR Loans and Alternative Currency Loans (other
than Alternative Currency Loans denominated in Canadian Dollars), the applicable rate per annum set forth below under
the caption “Base Rate Spread” or “Eurocurrency Rate Spread”, respectively
“Term SOFR / Alternative Currency Spread,” and (ii) for Base Rate
Loans and Canadian Prime Rate Loans, the applicable rate per annum set forth under the caption “Base Rate/Canadian Prime
Rate Spread”, in each case, based upon the Average Historical Excess Availability of the Borrower as of the most recent
Adjustment Date prior to such day, expressed as a percentage of the Maximum Borrowing Amount:
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|
Category |
Average Historical Excess Availability as a Percentage of the Line Cap |
|
Base |
| Category 1 | Above or equal to 66 2/3% | ||
| Category 2 | Less than 66 2/3% and above or equal to 33 1/3% | ||
| Category 3 | Less than 33 1/3% |
The Applicable Rate shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the Average Historical Excess Availability in accordance with the table above; provided that if a Borrowing Base Certificate is not delivered when required pursuant to Section 6.02(d), the “Applicable Rate” shall be the applicable rate per annum set forth above in Category 3 until a Borrowing Base Certificate is delivered in compliance with Section 6.02(f).
“Appropriate Lender” means, at any time, with respect to Loans of any Class, the Lenders of such Class.
“Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate or branch of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D or any other form approved by the Administrative Agent.
“Attorney Costs” means all reasonable and documented in reasonable detail fees, expenses, charges and disbursements of any law firm or other external legal counsel.
“Attributable Indebtedness” means, on any date, in respect of any Capitalized 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.
“Auto-Renewal Letter of Credit” has the meaning specified in Section 2.04(b)(iii).
“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.
“Average Historical Excess Availability”
means, at any Adjustment Date, the quotient, expressed as a percentage obtained by dividing (a) the average daily Specified Excess Availability
for the Fiscal Quarter immediately preceding such Adjustment Date (with the Borrowing Base at such time for any such day used to determine
“Specified Excess Availability”,”
calculated by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent on or prior to such day pursuant
to Section 6.02(f)) by (b) the average daily Line Cap for such Fiscal Quarter.
“Average Usage” shall mean, at any Adjustment Date, the average utilization of Revolving Commitments (expressed as a percentage) for the fiscal quarter immediately preceding such Adjustment Date.
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“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, rule, regulation or requirement for such EEA Member Country from time to time which 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 Products Reserves” means all reserves established by the Administrative Agent in its Permitted Discretion for Cash Management Obligations and Secured Hedge Agreements then outstanding.
“Bankruptcy Code” shall mean Title 11 of the United States Code (11 U.S.C. § 101, et seq.), as amended from time to time.
“Base Rate” means for any
day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the
Prime Rate, and (c) the Adjusted Eurocurrency RateTerm
SOFR on such day for an Interest Period of one month plus 1.00% (or, if such day is not a Business Day, the immediately
preceding Business Day); provided that, notwithstanding the foregoing, the “Base Rate” shall in no event be
less than 1.00% per annum.
“Base Rate Loan” means a Loan denominated in Dollars that bears interest based on the Base Rate.
“Benchmark”
means, initially, ICE LIBOR; provided that if a replacement of the Benchmark has occurred pursuant
to Section 3.03 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(b)(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) 0.26161% (26.161 basis points);
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provided
that, if initially ICE 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 Borrower 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
provided that,
if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than 0.00%, the Benchmark Replacement will
be deemed to be 0.00% 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 ICE 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.
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“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 (for purposes of ERISA Section 3(42) or otherwise for
purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.”
“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.
“Blocked Account Agreement” has the meaning specified in Section 6.18(b).
“Blocked Accounts” has the meaning specified in Section 6.18(b).
“Board of Directors” means, as to any Person, the board of directors, board of managers or other governing body of such Person, or if such Person is owned or managed by a single entity, the board of directors, board of managers or other governing body of such entity, and the term “directors” means members of the Board of Directors.
“Borrower” means Advantage Sales & Marketing Inc., a Delaware corporation.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a borrowing
consisting of Loans of the same Class and Type made, converted or continued on the same date and, in the case of EurocurrencyTerm
SOFR Loans and Alternative Currency Term Rate Loans, having the same Interest Period.
“Borrowing Base” means, at any time, an amount equal to (a) the Accounts Receivable Component, plus (b) the Qualified Cash Component, minus (c) the amount of all Reserves in effect as of such date of determination, as the same may at any time and from time to time be established in accordance with Section 2.22. The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 6.02(d) and Reserves established pursuant to Section 2.22; provided, further, that the inclusion in the Borrowing Base of any assets or other property acquired in connection with a transaction described in Section 6.11(a) shall be subject to the Borrower’s compliance with Section 6.11(a) within the time periods set forth therein.
“Borrowing Base Certificate” means a certificate from the senior vice president (finance), chief financial officer, treasurer, manager of treasury activities or assistant treasurer or other officer with equivalent duties of the Borrower in substantially the form of Exhibit K, as such form, subject to the terms hereof, may from time to time be modified as agreed by the Borrower and the Administrative Agent or such other form which is acceptable to the Administrative Agent in its reasonable discretion, and with such changes therein as may be required by the Administrative Agent in its Permitted Discretion to reflect the components of and Reserves against the Borrowing Base as provided for hereunder from time to time, together with appropriate exhibits, schedules, supporting documentation and additional reports as reasonably requested by the Administrative Agent.
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“Business Day” means (a)
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 jurisdiction where the Administrative Agent’s Office is located (which, as of the date of this Agreement, is New
York, New York) and if such day relates to any interest rate settings as to a Eurocurrency Rate Loan,
any fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried
out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars
are conducted by and between banks in the London interbank eurodollar market, (b) if such day relates to any interest
rate settings as to a Eurocurrency Ratean
Alternative Currency Loan or Letter of Credit denominated in an Alternative Currency (other than Canadian Dollars), any fundings,
settlements, payments and disbursements in such Alternative Currency, or any other dealings in such Alternative Currency to be carried
out pursuant to this Agreement in respect of any such Eurocurrency RateAlternative
Currency Loan or Letter of Credit, means any such day described in clause (a) above which is also a day on which dealings in
deposits in such Alternative Currency are conducted by and between banks in the Londonapplicable
offshore interbank market for such currency and (other
than any date that relates to any interest rate setting in respect of such Alternative Currency) any such day on which banks are open
for foreign exchange business in the principal financial center of the country of such Alternative Currency; and (c) if such date relates
to any interest rate settings as to a Loan denominated in Canadian Dollars, any day except Saturday, Sunday and any day which shall be
in Toronto, Ontario a statutory holiday or a day in which banking institutions are authorized or required by law or other government action
to close in Toronto, Ontario.
“Buyer” means CP II Merger Sub Inc., a Delaware corporation.
“Canadian Dollars” and “C$” shall mean the lawful currency of Canada.
“Canadian Loan Party” means each Loan Party organized under the laws of Canada or any province or territory thereof.
“Canadian Pension Plan” means
a “registered pension plan”,”
as such term is defined in subsection 248(1) of the Canadian Tax Act, which is or was sponsored, administered or contributed to, or required
to be contributed to, by Holdings or any of its subsidiaries for its employees or former employees in Canada.
“Canadian Pension Plan Event” means (a) a contribution or premium required to be paid to or in respect of any Canadian Pension Plan not having not been paid in a timely fashion in accordance with the terms thereof and all applicable law, or any taxes, penalties or fees owing or exigible under any Canadian Pension Plan beyond the date permitted for payment of same; (b) the winding-up or termination of a Canadian Pension Plan or the occurrence of an event respecting any Canadian Pension Plan which would entitle or could reasonably be expected to entitle any Person to wind-up or terminate any Canadian Pension Plan, or which could reasonably be expected to adversely affect the tax status thereof; or (c) the occurrence of an improper withdrawal or transfer of assets from any Canadian Pension Plan.
“Canadian Prime Rate” shall mean, for any period, the rate per annum determined by the Administrative Agent to be the higher of (i) the per annum rate of interest designated by Bank of America, N.A. (acting through its Canada branch) from time to time as its prime rate for commercial loans made by it in Canada in Canadian Dollars, which rate is based on various factors, including its 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 rate; or (ii) the rate of interest per annum equal to the Canadian Dollar bankers' acceptance rate, or comparable or successor rate approved by the Administrative Agent, determined by the Administrative Agent at or about 10:00 a.m. (Toronto time) on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day) for a term of one month, as quoted by Refinitiv Benchmark Services (UK) Limited as of such day, plus 1.00%. Any change in such rate shall take effect at the opening of business on the applicable Business Day.
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“Canadian Prime Rate Loans” shall mean any Swing Line Loan denominated in Canadian Dollars made by the Swing Line Lender to the Borrower which bears interest at a rate based on the Canadian Prime Rate.
“Canadian Priority Payables Reserve”
shall mean, on any date of determination, reserves established by the Administrative Agent in its Permitted Discretion which reflect amounts
secured by any Liens, choate or inchoate, which rank or are capable of ranking in priority to or pari passu with the Collateral
Agent’s Liens, including amounts owing for wages, vacation pay, severance pay, employee deductions, sales tax, excise tax, Tax payable
pursuant to Part IX of the Excise Tax Act (Canada) (net of GST input credits), income tax, workers compensation, government royalties,
pension fund obligations including employee and employer pension plan contributions (including “normal cost”,”
“special payments” and any other payments in respect of any funding deficiencies or shortfalls), overdue rents or Taxes, and
other statutory or other claims that have or may have priority over, or rank pari passu with, with the Collateral Agent’s
Liens.
“Canadian Security Agreement” means, collectively, the ABL Canadian Security Agreement and each deed of hypothec executed by the applicable Loan Parties, together with each Canadian Security Agreement Supplement executed and delivered pursuant to Section 6.11.
“Canadian Security Agreement Supplement” has the meaning specified in the Canadian Security Agreement.
“Canadian Subsidiary” means any Subsidiary that is organized under the Laws of Canada or any province or territory thereof.
“Canadian Tax Act” means the Income Tax Act (Canada), and the regulations promulgated thereunder.
“Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
“Capitalized Leases” means all financing leases that have been or are required to be, in accordance with GAAP as in effect on the Closing Date (including the Borrower’s adoption of Accounting Standards Update (ASU) No. 2016-02, Leases (Topic 842)), recorded as financing leases; provided that (i) for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP as in effect on the Closing Date (including the Borrower’s adoption of Accounting Standards Update (ASU) No. 2016-02, Leases (Topic 842)) and (ii) in no event shall an operating lease or a lease that would have been an operating lease prior to the adoption of Accounting Standards Update (ASU) No. 2016-02, Leases (Topic 842) be considered a Capitalized Lease.
“Captive Insurance Subsidiary” means any Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).
“Cash Collateral Account” means an account held at, and subject to the sole dominion and control of, the Collateral Agent.
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“Cash Collateralize” means, in respect of an Obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance satisfactory to the Administrative Agent, the Swing Line Lender or an Issuing Bank, as applicable (and “Cash Collateralization” has a corresponding meaning). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Dominion Period” means (a) each period beginning on the occurrence of a Specified ABL Event of Default until such Specified ABL Event of Default has been cured or waived and (b) each period beginning on the date that Specified Excess Availability shall have been less than the greater of (x) 10.0% of the Line Cap and (y) $25,000,000 for five consecutive Business Days and ending on the date that Specified Excess Availability shall have been at least the greater of (x) 10.0% of the Line Cap and (y) $25,000,000 for 20 consecutive calendar days (this clause (b), a “Liquidity Condition”). Notwithstanding anything to the contrary herein or in any other Loan Document, the Credit Extensions made on the Closing Date shall not be deemed to give rise to a Liquidity Condition unless and until a Credit Extension is made after the Closing Date and a Liquidity Condition subsequently occurs.
“Cash Equivalents” means any of the following types of Investments (including for the avoidance of doubt, cash), to the extent owned by the Borrower or any Restricted Subsidiary:
(a) (a) Dollars,
Canadian Dollars, Euros and each Alternative Currency;
(b) (b) local
currencies held by the Borrower or any Restricted Subsidiary from time to time in the ordinary course of business and not for speculation;
(c) (c) readily
marketable direct obligations issued or directly and fully and unconditionally guaranteed or insured by the United States government,
the Government of Canada or of any Canadian province, or any agency or instrumentality thereof the securities of which are unconditionally
guaranteed as a full faith and credit obligation of such government with maturities of 12 months or less from the date of acquisition;
(d) (d) certificates
of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits,
bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign
commercial bank having capital and surplus of not less than $500,000,000 (or the foreign currency equivalent thereof as of the date of
such investment);
(e) (e) repurchase
obligations for underlying securities of the types described in clauses (c) and (d) above or clause (h) below entered into with
any financial institution meeting the qualifications specified in clause (d) above;
(f) (f) commercial
paper rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating
such obligations, an equivalent rating from another nationally recognized statistical rating agency) and in each case maturing within
12 months after the date of creation thereof;
(g) (g) marketable
short-term money market and similar highly liquid funds having a rating of at least P-2 or A-2 from Moody’s or S&P, respectively
(or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized
statistical rating agency);
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(h) (h) readily
marketable direct obligations issued by any state, commonwealth or territory of the United States, any Canadian province or the Government
of Canada, or any political subdivision or taxing authority thereof, in each case having an Investment Grade Rating from either Moody’s
or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally
recognized statistical rating agency) with maturities of 12 months or less from the date of acquisition;
(i) (i) Investments
with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof)
or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P
shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);
(j) (j) investment
funds investing substantially all of their assets in securities of the types described in clauses (a) through (i) above; and
(k) (k) solely
with respect to any Captive Insurance Subsidiary, any investment that a Captive Insurance Subsidiary is not prohibited to make in accordance
with applicable Law.
In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a jurisdiction outside the United States of America, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (a) through (k) above in foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (k) above and in this paragraph. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (a) or (b) above; provided that such amounts, except amounts used to pay obligations of the Borrower or any Restricted Subsidiary denominated in any currency other than Dollars or an Alternative Currency in the ordinary course of business, are converted into Dollars or an Alternative Currency as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
“Cash Management Bank” means any Person that is a Lender or Agent or an Affiliate or branch of a Lender or Agent (a) on the Closing Date (with respect to any Cash Management Services entered into prior to the Closing Date), (b) at the time it initially provides any Cash Management Services to the Borrower or any Restricted Subsidiary, or (c) at the time that the Person to whom the Cash Management Services are provided is merged or amalgamated with the Borrower or becomes or is merged or amalgamated with a Restricted Subsidiary (with respect to any Cash Management Services entered into prior to the date of such merger or amalgamation or such Person becoming a Restricted Subsidiary), in each case whether or not such Person subsequently ceases to be a Lender or Agent or an Affiliate or branch of a Lender or Agent.
“Cash Management Obligations” means obligations owed by the Borrower or any Restricted Subsidiary to any Cash Management Bank in respect of or in connection with any Cash Management Services and designated by the Cash Management Bank and the Borrower in writing to the Administrative Agent as “Cash Management Obligations” (but only if such Cash Management Services have not been designated as “Cash Management Obligations” under the Term Loan Credit Agreement).
“Cash Management Services” means any agreement or arrangement to provide cash management services, including treasury, depository, overdraft, credit card processing, credit or debit card, purchase card, electronic funds transfer and other cash management arrangements.
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“Casualty Event” means any event that gives rise to the receipt by a Loan Party of any property or casualty insurance proceeds or any condemnation or expropriation awards, in each case, in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
““CDOR
Rate” shall mean, for the relevant Interest Period, the rate of interest
per annum equal to the Canadian Dollar bankers' acceptance rate, or comparable or successor rate approved by the Administrative Agent,
determined by it at or about 10:00 a.m. (Toronto time) on the applicable
day (or the preceding Business Day, if the applicable day is not a Business Day) for a term comparable
to the Eurocurrency Loan, as published on the CDOR or other applicable Reuters screen page (or other commercially available source designated
by the Administrative Agent from time to time); provided, (i)
if such rate does not appear on the Reuters screen page on such day as contemplated, then the CDOR Rate on such day shall be calculated
as the rate for such period applicable to Canadian Dollar bankers’ acceptances quoted by the Administrative Agent as of 10:00 a.m.,
on such day or, if such day is not a Business Day, then on the immediately preceding Business Day, and (ii) that, notwithstanding the
foregoing, the “CDOR Rate” shall in no event be less than 0.00% per annum.
“CFC”
means a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.
“Change in Law”
means the occurrence, after the date of this AgreementClosing
Date, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty (excluding the taking effect after the date of this Agreement of a law, rule, regulation or treaty adopted prior to the date of this Agreement),
(b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or
(c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
It is understood and agreed that (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173), all Laws relating thereto, all interpretations and applications thereof and any compliance by a Lender with any and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof or relating thereto and (ii) all requests, rules, guidelines, requirements or directives issued by any United States or foreign regulatory authority in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) in each case pursuant to Basel III, shall, for the purposes of this Agreement, be deemed to be adopted subsequent to the date hereof and a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented.
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“Change of Control” means the earliest to occur of:
(a) (a) any
Person (other than a Permitted Holder) or Persons (other than one or more Permitted Holders) constituting a “group” (as such
term is used in Section 13(d) and Section 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person and its Subsidiaries,
and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becoming the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of Equity Interests representing more than
forty percent (40%) of the aggregate ordinary voting power represented by the then issued and outstanding Equity Interests of Holdings
(or Successor Holdings, if applicable) and the percentage of aggregate ordinary voting power so held is greater than the percentage of
the aggregate ordinary voting power represented by the Equity Interests of Holdings (or Successor Holdings, if applicable) beneficially
owned (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, in the aggregate by the Permitted Holders,
unless the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate
for election 50% or more of the Board of Directors of either (1) Holdings or Successor Holdings, if applicable or (2) a Parent Entity;
(b) (b) the
Borrower ceasing to be a direct wholly owned Subsidiary of Holdings (or Successor Holdings, if applicable); and
(c) (c) a
Change of Control or similar event occurring under the Senior Secured Notes Indenture or the Term Loan Credit Agreement.
“Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Swing Line Loans, Protective Advances or Extended Revolving Loans, (b) any Commitment, refers to whether such Commitment is a Commitment in respect of Revolving Loans, Swing Line Loans or a Commitment in respect of a Class of Loans to be made pursuant to an Extension Amendment and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments.
“Closing Date” means the
first date on which all of the conditions precedent in Section 4.01 are satisfied or waived
in accordance with Section 11.01October
28, 2020.
“Closing Date ABL Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Closing Date, by and among the Collateral Agent, each Debt Representative under the Senior Secured Notes Indenture and the Term Loan Credit Agreement, and each additional representative from time to time party thereto, as acknowledged by the Loan Parties, as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof.
“Closing Date EBITDA” means $542,000,000.
“Closing Date First Lien Net Leverage Ratio” means 4.00 to 1.00.
“Closing Date Refinancing” has the meaning specified in the preliminary statements to this Agreement.
“Closing Date Secured Net Leverage Ratio” means 4.00 to 1.00.
“Closing Date Total Net Leverage Ratio” means 4.00 to 1.00.
“CME” means CME Group Benchmark Administration Limited.
“Co-Borrower” has the meaning specified in Section 1.10.
“Co-Borrower Effective Date” has the meaning specified in Section 1.10.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
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“Collateral” means all the “Collateral” (or equivalent term, including “hypothecated property”) as defined in any Collateral Document and all other property that is subject or purported to be subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to any Collateral Document, but in any event excluding all Excluded Assets.
“Collateral Agent” has the meaning specified in the introductory paragraph to this Agreement.
“Collateral Documents” means, collectively, the Security Agreement, the Canadian Security Agreement, the Intellectual Property Security Agreements, the Security Agreement Supplements, the Canadian Security Agreement Supplements, security agreements or other similar agreements delivered to the Agents and the Lenders pursuant to Sections 4.01(a), 6.11, 6.12 or 6.15, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.
“Commitments” means the Revolving Commitments.
“Committed Loan Notice” means a notice of a Borrowing pursuant to Article II, which, if in writing, shall be substantially in the form of Exhibit A-1 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).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company Person” means any future, current or former officer, director, manager, member, member of management, employee, consultant or independent contractor of the Borrower, any Subsidiary, Holdings or any Parent Entity.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Concentration Account” has the meaning specified in Section 6.18(b).
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate for an Agreed Currency, as applicable, any conforming changes to the definitions of “Base Rate,” “SOFR,” “Term SOFR” and “Interest Period,” timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day,” timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, in consultation with the Borrower, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for an Agreed Currency (or, if the Administrative Agent, in consultation with the Borrower, determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate for an Agreed Currency exists, in such other manner of administration as the Administrative Agent, in consultation with the Borrower, determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“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.
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“Consolidated Adjusted EBITDA” means, with respect to any Person for any Test Period, the Consolidated Net Income of such Person for such Test Period:
(a) (a) increased,
without duplication, by the following items (solely to the extent deducted (and not excluded) in calculating Consolidated Net Income,
other than in respect of the proviso in clause (i) below and clauses (ii)(B), (xi), (xix) and (xx) below) of such Person and its Restricted
Subsidiaries for such Test Period determined on a consolidated basis in accordance with GAAP:
(i) (i) interest
expense, including (A) imputed interest on Capitalized Lease Obligations and Attributable Indebtedness (which, in each case, will be deemed
to accrue at the interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such
Capitalized Lease Obligations or Attributable Indebtedness), (B) commissions, discounts and other fees, charges and expenses owed with
respect to letters of credit, bankers’ acceptance financing, surety and performance bonds and receivables financings, (C) amortization
and write-offs of deferred financing fees, debt issuance costs, debt discounts, commissions, fees, premium and other expenses, as well
as expensing of bridge, commitment or financing fees, (D) payments made in respect of hedging obligations or other derivative instruments
entered into for the purpose of hedging interest rate risk, (E) cash contributions to any employee stock ownership plan or similar trust
to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than such Person or a wholly-owned
Restricted Subsidiary) in connection with Indebtedness incurred by such plan or trust, (F) all interest paid or payable with respect to
discontinued operations, (G) the interest portion of any deferred payment obligations, and (H) all interest on any Indebtedness that is
(x) Indebtedness of others secured by any Lien on property owned or acquired by such Person or its Restricted Subsidiaries, whether or
not the obligations secured thereby have been assumed, but limited to the fair market value of such property, (y) contingent obligations
in respect of Indebtedness; provided that such interest expense shall be calculated after giving effect to Hedge Agreements related
to interest rates (including associated costs), but excluding unrealized gains and losses with respect to such Hedge Agreements or (z)
fee and expenses paid to the Administrative Agent (in its capacity as such and for its own account) pursuant to the Loan Documents and
fees and expenses paid to the administrative agent, the collateral agent, trustee or other similar Persons for any other Indebtedness
permitted by Section 7.03; provided further that, when determining such interest expense in respect of any Test Period ending
prior to the first anniversary of the Closing Date, such interest expense will be calculated by multiplying the aggregate amount of such
interest expense accrued since the Closing Date by 365 and then dividing such product by the number of days from and including the Closing
Date to and including the last day of such Test Period; plus
(ii) (ii) taxes
based on gross receipts, income, profits or revenue or capital, franchise, excise, property, commercial activity, sales, use, unitary
or similar taxes, and foreign withholding taxes, including (A) penalties and interest and (B) tax distributions made to any direct or
indirect holders of Equity Interests of such Person in respect of any such taxes attributable to such Person and/or its Restricted Subsidiaries
or pursuant to a tax sharing arrangement or as a result of a tax distribution or repatriated fund; plus
(iii) (iii) depreciation
expense and amortization expense (including amortization and similar charges related to goodwill, customer relationships, trade names,
databases, technology, software, internal labor costs, deferred financing fees or costs and other intangible assets); plus
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(iv) (iv) non-cash
items (provided that if any such non-cash item represents an accrual or reserve for potential cash items in any future period,
(x) the Borrower may determine not to add back such non-cash item in the current Test Period, (y) to the extent the Borrower decides to
add back such non-cash expense or charge, the cash payment in respect thereof in such future period will be subtracted from Consolidated
Adjusted EBITDA in such future period), including the following: (A) non-cash expenses in connection with, or resulting from, stock option
plans, employee benefit plans or agreements or post-employment benefit plans or agreements, or grants or sales of stock, stock appreciation
or similar rights, stock options, restricted stock, preferred stock or other similar rights, (B) non-cash currency translation losses
related to changes in currency exchange rates (including re-measurements of Indebtedness (including intercompany Indebtedness) and any
net non-cash loss resulting from hedge agreements for currency exchange risk), (C) non-cash losses, expenses, charges or negative adjustments
attributable to the movement in the mark-to-market valuation of hedge agreements or other derivative instruments, including the effect
of FASB Accounting Standards Codification 815 and International Accounting Standard No. 9 and their respective related pronouncements
and interpretations, (D) non-cash charges for deferred tax asset valuation allowances, (E) any non-cash impairment charge or asset write-off
or write-down related to intangible assets (including goodwill), long-lived assets, and Investments in debt and equity securities, (F)
any non-cash charges or losses resulting from any purchase accounting adjustment or any step-ups with respect to re-valuing assets and
liabilities in connection with the Transactions or any Investments either existing or arising after the Closing Date, (G) all non-cash
losses from Investments either existing or arising after the Closing Date recorded using the equity method and (H) the excess of GAAP
rent expense over actual cash rent paid during such period due to the use of straight line rent for GAAP purposes and (z) any non-cash
interest expense; plus
(v) (v) unusual,
extraordinary, infrequent, or non-recurring items, whether or not classified as such under GAAP; plus
(vi) (vi) charges,
costs, losses, expenses or reserves related to: (A) restructuring (including restructuring charges or reserves, whether or not classified
as such under GAAP), severance, relocation, consolidation, integration or other similar items, (B) strategic and/or business initiatives,
business optimization (including costs and expenses relating to business optimization programs, which, for the avoidance of doubt, shall
include, without limitation, implementation of operational and reporting systems and technology initiatives; strategic initiatives; retention;
severance; systems establishment costs; systems conversion and integration costs; contract termination costs; recruiting and relocation
costs and expenses; costs, expenses and charges incurred in connection with curtailments or modifications to pension and post-retirement
employee benefits plans; costs to start-up, pre-opening, opening, closure, transition and/or consolidation of distribution centers, operations,
officers and facilities) including in connection with the Transactions and any Permitted Investment, any acquisition or other investment
consummated prior to the Closing Date and new systems design and implementation, as well as consulting fees and any one-time expense relating
to enhanced accounting function, (C) business or facilities (including greenfield facilities) start-up, opening, transition, consolidation,
shut-down and closing, (D) signing, retention and completion bonuses, (E) severance, relocation or recruiting, (F) public company
registration, listing, compliance, reporting and related expenses, (G) charges and expenses incurred in connection with litigation (including
threatened litigation), any investigation or proceeding (or any threatened investigation or proceeding) by a regulatory, governmental
or law enforcement body (including any attorney general), and (H) expenses incurred in connection with casualty events or asset sales
outside the ordinary course of business; plus
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(vii) (vii) all
(A) costs, fees and expenses relating to the Transactions, (B) costs, fees and expenses (including diligence and integration costs) incurred
in connection with (x) investments in any Person, acquisitions of the Equity Interests of any Person, acquisitions of all or a material
portion of the assets of any Person or constituting a line of business of any Person, and financings related to any of the foregoing or
to the capitalization of any Loan Party or any Restricted Subsidiary or (y) other transactions that are out of the ordinary course of
business of such Person and its Restricted Subsidiaries (in each case of clause (x) and (y), including transactions considered
or proposed but not consummated), including Permitted Equity Issuances, Investments, acquisitions, dispositions, recapitalizations, mergers,
amalgamations, option buyouts and the incurrence, modification or repayment of Indebtedness (including all consent fees, premium and other
amounts payable in connection therewith) and (C) non-operating professional fees, costs and expenses; plus
(viii) (viii) items
reducing Consolidated Net Income to the extent (A) covered by a binding indemnification or refunding obligation or insurance to the extent
actually paid or reasonably expected to be paid, (B) paid or payable (directly or indirectly) by a third party that is not a Loan Party
or a Restricted Subsidiary (except to the extent such payment gives rise to reimbursement obligations) or with the proceeds of a contribution
to equity capital of such Person by a third party that is not a Loan Party or a Restricted Subsidiary or (C) such Person is, directly
or indirectly, reimbursed for such item by a third party; plus
(ix) (ix) the
amount of management, monitoring, consulting, transaction and advisory fees (including termination fees) and related indemnities and expenses
paid, payable or accrued in such Test Period (including any termination fees payable in connection with the early termination of management
and monitoring agreements); plus
(x) (x) the
effects of purchase accounting, fair value accounting or recapitalization accounting (including the effects of adjustments pushed down
to such Person and its Subsidiaries) and the amortization, write-down or write-off of any such amount; plus
(xi) (xi) proceeds
of business interruption insurance actually received (to the extent not counted in any prior period in anticipation of such receipt) or,
to the extent not counted in any prior period, reasonably expected to be received; plus
(xii) (xii) minority
interest expense consisting of income attributable to Equity Interests held by third parties in any non-wholly-owned Restricted Subsidiary;
plus
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(xiii) (xiii) all
charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Equity Interests held by officers
or employees and all losses, charges and expenses related to payments made to holders of options or other derivative Equity Interests
of such Person or any direct or indirect parent thereof in connection with, or as a result of, any distribution being made to equity holders
of such Person or any direct or indirect parent thereof, including (A) payments made to compensate such holders as though they were equity
holders at the time of, and entitled to share in, such distribution, and (B) all dividend equivalent rights owed pursuant to any compensation
or equity arrangement; plus
(xiv) (xiv) expenses,
charges and losses resulting from the payment or accrual of indemnification or refunding provisions, earn-outs and contingent consideration
obligations; bonuses and other compensation paid to employees, directors or consultants; and payments in respect of dissenting shares
and purchase price adjustments; in each case, made in connection with a Permitted Investment or other transactions disclosed in the documents
referred to in clause ((xix))
below; plus
(xv) (xv) any
losses from abandoned, closed, disposed or discontinued operations or operations that are anticipated to become abandoned, closed, disposed
or discontinued; plus
(xvi) (xvi) (A)
any costs or expenses (including any payroll taxes) incurred by the Borrower or any Restricted Subsidiary in such Test Period as a result
of, in connection with or pursuant to any management equity plan, profits interest or stock option plan or any other management or employee
benefit plan or agreement, any pension plan (including (1) any post-employment benefit scheme to which the relevant pension trustee has
agreed, (2) as a result of curtailments or modifications to pension and post-retirement employee benefit plans and (3) without limitation,
compensation arrangements with holders of unvested options entered into in connection with a permitted Restricted Payment), any stock
subscription, stockholders or partnership agreement, any payments in the nature of compensation or expense reimbursement made to independent
board members, any employee benefit trust, any employee benefit scheme or any similar equity plan or agreement (including any deferred
compensation arrangement), including any payment made to option holders in connection with, or as a result of, any distribution being
made to, or share repurchase from, a shareholder, which payments are being made to compensate option holders as though they were shareholders
at the time of, and entitled to share in, such distribution or share repurchase and (B) any costs or expenses incurred in connection with
the rollover, acceleration or payout of Equity Interests held by management of Holdings (or any Parent Entity, the Borrower and/or any
Restricted Subsidiary); plus
(xvii) (xvii) the
amount of loss or discount on sale of receivables, Securitization Assets and related assets to any Securitization Subsidiary in connection
with a Qualified Securitization Financing; plus
(xviii) (xviii) the
cumulative effect of a change in accounting principles; plus
(xix) (xix) addbacks
of the type reflected in (A) the Sponsor Model in connection with the Transactions or the quality of earnings report delivered to the
Lead Arrangers in connection with the Transactions or (B) any quality of earnings report prepared by a nationally recognized accounting
firm and furnished to the Administrative Agent, in connection with any Permitted Investment or other Investment consummated after the
Closing Date; plus
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(xx) (xx) the
amount of “run rate” cost savings, operating expense reductions and other cost synergies that are projected by the Borrower
in good faith to result from actions taken, committed to be taken or expected to be taken no later than 24 months after the end of such
Test Period (which amounts will be determined by the Borrower in good faith and calculated on a pro forma basis as though such amounts
had been realized on the first day of the Test Period for which Consolidated Adjusted EBITDA is being determined), net of the amount of
actual benefits realized during such Test Period from such actions; provided that, in the good faith judgment of the Borrower such
cost savings are reasonably identifiable, reasonably anticipated to be realized and factually supportable (it being agreed such determinations
need not be made in compliance with Regulation S-X or other applicable securities law); provided that the aggregate amount added
back pursuant to this clause (xx) shall not exceed 25% of Consolidated Adjusted EBITDA for such Test Period (calculated after giving effect
to the addition of all such amounts); plus
(xxi) (xxi) to
the extent not included in Consolidated Net Income for such period, cash actually received (or any netting arrangement resulting in reduced
cash expenditures) during such period so long as the non-cash gain relating to the relevant cash receipt or netting arrangement was deducted
in the calculation of Consolidated Adjusted EBITDA for any previous period and not added back; plus
(xxii) (xxii) [reserved];
plus
(xxiii) (xxiii) the
amount of any contingent payments in connection with the licensing of intellectual property or other assets; plus
(xxiv) (xxiv) Public
Company Costs; plus
(xxv) (xxv) the
amount of fees, expense reimbursements and indemnities paid to directors and/or members of advisory boards, including directors of Holdings
or any other Parent Entity; plus
(xxvi) (xxvi) any
net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including
amortization or such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at
the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature; plus
(xxvii) (xxvii) payments
made pursuant to Earnouts and Unfunded Holdbacks; and
(b) (b) decreased,
without duplication, by the following items of such Person and its Restricted Subsidiaries for such Test Period determined on a consolidated
basis in accordance with GAAP (solely to the extent increasing Consolidated Net Income):
(i) (i) any
amount which, in the determination of Consolidated Net Income for such period, has been included for any non-cash income or non-cash gain,
all as determined in accordance with GAAP (provided that if any non-cash income or non-cash gain represents an accrual or deferred
income in respect of potential cash items in any future period, such Person may determine not to deduct the relevant non-cash gain or
income in the then-current period); plus
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(ii) (ii) the
amount of any cash payment made during such period in respect of any non-cash accrual, reserve or other non-cash charge that is accounted
for in a prior period and that was added to Consolidated Net Income to determine Consolidated Adjusted EBITDA for such prior period and
that does not otherwise reduce Consolidated Net Income for the current period; plus
(iii) (iii) the
excess of actual cash rent paid over rent expense during such period due to the use of straight-line rent for GAAP purposes; plus
(iv) (iv) the
amount of any income or gain associated with any Restricted Subsidiary that is attributable to any non-controlling interest and/or minority
interest of any third party; plus
(v) (v) any
net income from disposed or discontinued operations; plus
(vi)
(vi) any unusual, extraordinary, infrequent
or non-recurring gains.
Notwithstanding the foregoing, the Consolidated Adjusted EBITDA (i) for the fiscal quarter ending September 30, 2019 shall be $155,609,658, (ii) for the fiscal quarter ending December 31, 2019 shall be $156,958,261, (iii) for the fiscal quarter ending March 31, 2020 shall be $111,795,535 and (iv) for the fiscal quarter ending June 30, 2020 shall be $117,275,309, in each case, as such amounts may be adjusted pursuant to the foregoing provisions and other pro forma adjustments permitted by this Agreement (including as necessary to give Pro Forma Effect to any Specified Transaction).
“Consolidated Capital Expenditures” means, for any period, the aggregate amount of all expenditures of the Borrower and its Restricted Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included as additions to property, plant and equipment in the consolidated statement of cash flows of the Borrower. Notwithstanding the foregoing, Consolidated Capital Expenditures shall not include:
(a) (a) the
purchase price of property, plant, equipment or software in an amount equal to the proceeds of asset dispositions of fixed or capital
assets that are not required to be applied to prepay the Term Loans pursuant to Section 2.07(b)(ii) of the Term Loan Credit Agreement
(as in effect on the Closing Date);
(b) (b) expenditures
made with tenant allowances received by the Borrower or any of its Subsidiaries from landlords in the ordinary course of business and
subsequently capitalized;
(c) (c) any
amounts spent in connection with Investments permitted pursuant to Section 7.02, Permitted Acquisitions and expenditures made
in connection with the Transactions;
(d) (d) expenditures
financed with the proceeds of an issuance of capital stock of any parent company of the Borrower, or any cash capital contribution to
the Borrower;
(e) (e) expenditures
that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for by a Person
other than the Borrower or any Restricted Subsidiary to the extent neither the Borrower nor any Restricted Subsidiary has provided or
is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before,
during or after such period);
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(f) (f) any
expenditures which are contractually required to be, and are, advanced or reimbursed to the Borrower or any Restricted Subsidiary in cash
by a third party (including landlords) during such period of calculation;
(g) (g) the
book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book
value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during
such period without a corresponding expenditure actually having been made in such period; provided that (i) any expenditure necessary
in order to permit such asset to be reused shall be included as a capital expenditure during the period in which such expenditure actually
is made and (ii) such book value shall have been included in capital expenditures when such asset was originally acquired;
(h) (h) that
portion of interest on Indebtedness incurred for capital expenditures which is paid in cash and capitalized in accordance with GAAP;
(i) (i) expenditures
made in connection with the replacement, substitution, restoration, upgrade, development or repair of assets to the extent financed with
(x) insurance or settlement proceeds paid on account of the loss of or damage to the assets being replaced, substituted, restored, upgraded,
developed or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced;
(j) (j) in
the event that any equipment is purchased simultaneously with the trade-in of existing equipment, the gross amount of the credit granted
by the seller of such equipment for the equipment being traded in at such time;
(k) (k) expenditures
relating to the construction, acquisition, replacement, reconstruction, development, refurbishment, renovation or improvement of any property
which has been transferred to a Person other than the Borrower or any Restricted Subsidiary during the same Fiscal Year in which such
expenditures were made pursuant to a sale leaseback transaction to the extent of the cash proceeds received by the Borrower or Restricted
Subsidiary pursuant to such sale leaseback that are not required to prepay the Term Loans pursuant to Section 2.07(b)(ii) of the Term
Loan Credit Agreement,
(l) (l) expenditures
relating to client-funded technology of Holdings and its Restricted Subsidiaries; or
(m) (m) the
Transactions.
“Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for such period, excluding (a) any amount not paid or payable currently in cash and (b) Transaction Expenses otherwise included in Consolidated Interest Expense.
“Consolidated Interest Expense” means, for any Test Period, the sum of:
(a) (a) cash
interest expense (including that attributable to Capitalized Leases), net of cash interest income, of the Borrower and the Restricted
Subsidiaries with respect to all outstanding Indebtedness of the Borrower and the Restricted Subsidiaries, including all commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under
hedging agreements, plus
| -24- |
(b) (b) non-cash
interest expense resulting solely from the amortization of OID from the issuance of Indebtedness of the Borrower and the Restricted Subsidiaries
(excluding Indebtedness incurred under this Agreement, the Term Loan Credit Agreement or the Senior Secured Notes in connection with and
to finance the Transactions) at less than par, plus
(c) (c) pay-in-kind
interest expense of the Borrower and the Restricted Subsidiaries payable pursuant to the terms of the agreements governing such debt for
borrowed money;
but excluding, for the avoidance of doubt, (i) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses and any other amounts of non-cash interest other than referred to in clause (b) above (including as a result of the effects of acquisition method accounting or pushdown accounting), (ii) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging, (iii) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates, (iv) commissions, discounts, yield, make whole premium and other fees and charges (including any interest expense) incurred in connection with any receivables financing (including any Qualified Securitization Financing), (v) any “additional interest” owing pursuant to a registration rights agreement with respect to any securities, (vi) any payments with respect to make-whole premiums or other breakage costs of any Indebtedness, including any Indebtedness issued in connection with the Transactions, (vii) penalties and interest relating to taxes, (viii) accretion or accrual of discounted liabilities not constituting Indebtedness, (ix) interest expense attributable to a direct or indirect Parent Entity resulting from push-down accounting, (x) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting and (xi) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to any Acquisition Transaction or other Investment, all as calculated on a consolidated basis in accordance with GAAP. For the avoidance of doubt, interest expense shall be determined after giving effect to any net payments made or received by the Borrower and its Restricted Subsidiaries in respect of Swap Contracts relating to interest rate protection.
“Consolidated Net Debt” means, as of any date of determination, (a) Consolidated Total Debt minus (b) the aggregate amount of cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of such date that is not Restricted.
“Consolidated Net Income” means, with respect to any Person for any Test Period, the Net Income of such Person and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; provided, that there shall be excluded from such consolidated net income (to the extent otherwise included therein), without duplication:
(a) (a) the
Net Income for such Test Period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by
the equity method of accounting; provided that the Borrower’s or any Restricted Subsidiary’s equity in the Net Income
of such Person shall be included in the Consolidated Net Income of the Borrower for such Test Period up to the aggregate amount of dividends
or distributions or other payments in respect of such equity that are actually paid in cash (or to the extent converted into cash) by
such Person to the Borrower or a Restricted Subsidiary, in each case, in such Test Period, to the extent not already included therein;
(b) (b) [reserved];
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(c) (c) any
gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized by such
Person or any of its Restricted Subsidiaries during such Test Period upon any asset sale or other disposition of any Equity Interests
of any Person (other than any dispositions in the ordinary course of business) by such Person or any of its Restricted Subsidiaries;
(d) (d) gains
and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such Test
Period;
(e) (e) earnings
(or losses), including any impairment charge, resulting from any reappraisal, revaluation or write-up (or write-down) of assets during
such Test Period;
(f) (f) (i) unrealized
gains and losses with respect to Hedge Agreements for such Test Period and the application of Accounting Standards Codification 815
(Derivatives and Hedging) and (ii) any after-tax effect of income (or losses) for such Test Period that result from the early extinguishment
of (A) Indebtedness, (B) obligations under any Hedge Agreements or (C) other derivative instruments;
(g) (g) any
extraordinary, infrequent, non-recurring or unusual gain (or extraordinary, infrequent, non-recurring or unusual loss), together with
any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by such Person or any of
its Restricted Subsidiaries during such Test Period;
(h) (h) the
cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies
during such Test Period;
(i) (i) after-tax
gains (or losses) on disposal of disposed, abandoned or discontinued operations for such Test Period;
(j) (j) effects
of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the inventory,
property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue, debt and unfavorable
or favorable lease line items in such Person’s consolidated financial statements pursuant to GAAP for such Test Period resulting
from the application of purchase accounting in relation to the Transactions or any acquisition consummated prior to the Closing Date and
any Permitted Acquisition or other Investment or the amortization or write-off of any amounts thereof, net of taxes, for such Test Period;
(k) (k) any
non-cash compensation charge or expense for such Test Period, including any such charge or expense arising from the grants of stock appreciation
or similar rights, stock options, restricted stock or other rights and any cash charges or expenses associated with the rollover, acceleration
or payout of Equity Interests by, or to, management of such Person or any of its Restricted Subsidiaries in connection with the Transactions;
(l) (l) (i) Transaction
Expenses incurred during such Test Period and (ii) any fees and expenses incurred during such Test Period, or any amortization thereof
for such Test Period, in connection with any acquisition (other than the Transactions), Investment, disposition, issuance or repayment
of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt or equity instrument (in
each case, including any such transaction whether consummated on, after or prior to the Closing Date and any such transaction undertaken
but not completed) and any charges or non-recurring costs incurred during such Test Period as a result of any such transaction;
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(m) (m) any
expenses, charges or losses for such Test Period that are covered by indemnification or other reimbursement provisions in connection with
any Investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement,
to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification
or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination
(with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such
365 days); and
(n) (n) to
the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable
evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable
future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses for
such Test Period with respect to liability or casualty events or business interruption.
“Consolidated Secured Net Debt” means, as of any date of determination, Consolidated Net Debt that is secured by a Lien on the Collateral outstanding as of such date, other than Capitalized Lease Obligations.
“Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of third party Indebtedness of the Borrower and the Restricted Subsidiaries outstanding on such date, determined on a consolidated basis and as reflected on the face of a balance sheet prepared in accordance with GAAP (but excluding the effects of the application of purchase accounting in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereunder), consisting of Indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit (to the extent not cash collateralized), and obligations in respect of Capitalized Leases and purchase money obligations and debt obligations evidenced by promissory notes or debentures; provided that Consolidated Total Debt will not include Indebtedness in respect of (a) any Qualified Securitization Financing, (b) any letter of credit, except to the extent of unreimbursed obligations in respect of drawn letters of credit (provided, that any unreimbursed amount under commercial letters of credit will not be counted as Consolidated Total Debt until three Business Days after such amount is drawn (it being understood that any borrowing, whether automatic or otherwise, to fund such reimbursement will be counted)), (c) obligations under Hedge Agreements, (d) obligations in respect of cash management obligations, (e) purchase money obligations incurred in the ordinary course, trade payable and earn outs and similar obligations, (f) Indebtedness to the extent it has been cash collateralized, and (g) any lease obligations other than in respect of Capitalized Leases.
“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.
“Contribution Indebtedness” means Indebtedness in an aggregate principal amount at the time of the incurrence thereof not to exceed an amount equal to 100.00% of the amount of any Permitted Equity Issuances during the period from and including the Business Day immediately following the Closing Date through and including the reference date that are Not Otherwise Applied.
“Control” has the meaning specified in the definition of “Affiliate.”
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“Conversion/Continuation Notice”
means a notice of (a) a conversion of Loans from one Type to another or (b) a continuation of EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans, pursuant to Article II, which, if in writing, shall be substantially
in the form of Exhibit A-3.
“Covenant Trigger Event” means any date after the last day of the first full fiscal quarter ended after the Closing Date on which Specified Excess Availability shall be less than the greater of (a) 10% of the Line Cap and (b) $25,000,000 at any time and continuing until Specified Excess Availability is equal to or exceeds the greater of (a) 10% of the Line Cap and (b) $25,000,000 for thirty (30) consecutive calendar days; provided that such $25,000,000 level shall automatically increase in proportion to the amount of any increase in the aggregate Revolving Commitments hereunder in connection with any Incremental Facility.
“Covered Entity” means any of the following:
(a) (A) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) (B) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R § 47.3(b); or
(c) (C) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning specified in Section 11.26(b).
“Credit Agreement Refinancing Indebtedness”
has the meaning assigned to such term in the Term Loan Credit Agreement (as in effect on the date hereofClosing
Date).
“Credit Extension” means each of (i) the making of a Revolving Loan, Swing Line Loan or Protective Advance and (ii) the issuance, amendment, modification, renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase the stated amount of the relevant Letter of Credit).
“Cure Expiration Date” has the meaning specified in Section 8.02.
“Daily
Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate 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).
“DDA” means any checking, demand deposit or other account maintained by the Loan Parties and used to receive or deposit payments, checks and other funds from customers and other payors, other than any Excluded Account.
“Debt Representative” means, with respect to any series of Indebtedness secured by a Lien that is subject to an Intercreditor Agreement, or is subordinated in right of payment to all or any part of the Obligations, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
| -28- |
“Debtor Relief Laws” means the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, including any applicable corporations legislation to the extent the relief sought under such corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2.00% per annum; provided that with respect to the outstanding principal amount of any Loan not paid when due, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan (giving effect to Section 2.05(c)) plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.
“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.
“Defaulting Lender” means, subject to Section 2.19(b), any Lender that,
(a) (a) has
failed to (i) fund all or any portion of its Loans, including participations in respect of Letters of Credit, Swing Line Loans or
Protective Advances within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the
Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more
conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified
in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Swing Line Lender, the Issuing Banks or any
other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit, Swing
Line Loans or Protective Advances) within two Business Days of the date when due,
(b) (b) has
notified the Borrower, the Administrative Agent, the Swing Line Lender or the Issuing Banks 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 Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination
that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically
identified in such writing or public statement) cannot be satisfied),
(c) (c) has
failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative
Agent and the Borrower 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 Borrower), or
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(d) (d) the
Administrative Agent or the Borrower has received notification that such Lender is, or has a direct or indirect parent entity that is,
(i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as
they become due, or makes a general assignment for the benefit of its creditors, (ii) other than via an Undisclosed Administration,
the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor
or sequestrator, 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 Federal or state regulatory authority acting
in such a capacity or the like has been appointed for such Lender or its direct or indirect parent entity, or such Lender or its direct
or indirect parent entity has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or
appointment 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 entity 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 or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
Any determination by the Administrative Agent or the Borrower that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19) upon delivery of written notice of such determination to the Borrower, the Swing Line Lender, the Issuing Banks and each Lender.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanctions.
“Designated Non-Cash Consideration” means the fair market value of any non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to the General Asset Sale Basket that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within one hundred eighty days following the consummation of the applicable Disposition).
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (excluding Liens and any sale of Equity Interests in, or issuance of Equity Interests by, a Restricted Subsidiary, but including, for the avoidance of doubt, any Division) of any property by any Person.
“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition,
(a) (a) matures
or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except
as a result of a change of control or asset sale as long as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event is subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and
the termination of the Commitments and Cash Collateralization of all Letters of Credit),
(b) (b) is
redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part,
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(c) (c) provides
for the scheduled payments of dividends that are required to be made only in cash, or
(d) (d) is
or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests,
in each case, prior to the Latest Maturity Date of the Loans at the time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of one or more Company Persons or by any such plan to one or more Company Persons, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Holdings, the Borrower or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of a Company Person’s termination, death or disability.
“Disqualified Lender” means,
(a) (a) the
competitors of the Borrower and its Subsidiaries identified in writing by or on behalf of the Borrower (i) to the Lead Arrangers on or
prior to the Closing Date, or (ii) to the Administrative Agent, from time to time on or after the Closing Date;
(b) (b) (i)
any Persons that are engaged as principals primarily in private equity or venture capital (other than a bona fide debt fund affiliate
of any of the Lead Arrangers) and (ii) those particular banks, financial institutions, other institutional lenders and other Persons,
in the case of each of clauses (i) and (ii), to the extent identified in writing by or on behalf of the Borrower (x) to
the Lead Arrangers on or prior to September 14, 2020 or (y) after the Closing Date to the Administrative Agent with the reasonable consent
of the Administrative Agent; and
(c) (c) any
Affiliate of a Person described in the preceding clauses (a) or (b) that (in each case with respect to clause (a) above,
other than any Affiliates that are banks, financial institutions, bona fide debt funds or investment vehicles that are engaged in making,
purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course), in each
case, is either reasonably identifiable as such on the basis of its name or is identified as such in writing by or on behalf of the Borrower
(i) to the Lead Arrangers on or prior to the Closing Date, or (ii) to the Administrative Agent from time to time on or after the Closing
Date.
The Borrower may, in its discretion, make the list of Disqualified Lenders available to any Lender, Participant, or any prospective Lender or Participant, upon request by such Lender, Participant or prospective Lender or Participant, as applicable. The Borrower shall, upon request of any Lender, identify whether any Person identified by such Lender as a proposed assignee or Participant is a Disqualified Lender. To the extent Persons are identified as Disqualified Lenders after the Closing Date pursuant to clauses (a) or (c) above, the inclusion of such Persons as Disqualified Lenders shall not retroactively apply to prior assignments or participations made in compliance with Section 11.07 hereof.
“Division” has the meaning specified in Section 1.02(d).
“Document” has the meaning set forth in Article 9 of the UCC or, if applicable, a “document of title” as defined in the PPSA.
“Dollar” and “$”mean lawful money of the United States.
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“Dollar Amount” means, at any time:
(a) (a) with
respect to any Loan denominated in Dollars, the principal amount thereof then outstanding (or in which such participation is held);
(b) (b) with
respect to any Loan denominated in any Alternative Currency, the principal amount thereof then outstanding in the relevant Alternative
Currency converted to Dollars in accordance with Section 1.09;
(c) (c) with
respect to any Letter of Credit Obligation (or any risk participation therein), (i) if denominated in Dollars, the amount thereof and
(ii) if denominated in any Alternative Currency other than Dollars, the amount thereof converted to Dollars in accordance with Section
1.09; and
(d) (d) with
respect to any other amount (i) if denominated in Dollars, the amount thereof and (ii) if denominated in any currency other than Dollars,
the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable Issuing Banks, as applicable, on
the basis of the Exchange Rate (determined in respect of the most recent relevant date of determination) for the purchase of Dollars with
such currency.
“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia.
“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:
| (2) | the joint election by the Administrative Agent and the Borrower to replace ICE LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of written notice of such election to the Lenders. |
“Earnouts” means (a) all earnout payments or other contingent payments in connection with any Permitted Investment and (b) Existing Earnouts and Unfunded Holdbacks.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“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 Accounts Receivable” means, at any time, all Accounts due to any Loan Party arising from the sale of goods of the Loan Parties or the provision of services by one or more Loan Parties, minus any finance charges, late fees and other fees that are unearned, sales, GST, excise or similar taxes, and credits or allowances granted at such time; provided that Eligible Accounts Receivable shall not include any Account (without duplication of any Reserves established in accordance with Section 2.22):
(a) (a) which
is not subject to a first priority perfected security interest in favor of the Administrative Agent (other than Permitted Liens arising
by operation of law and having priority by applicable Law, without limiting the ability of the Administrative Agent to change, establish
or eliminate any Reserves in its Permitted Discretion on account of any such Permitted Lien);
(b) (b) with
respect to which (a) more than 120 days have elapsed from the original invoice date thereof, except that up to $30.0 million of Accounts
with respect to which more than 120 days, but not more than 150 days, have elapsed from the original invoice date shall be deemed eligible
or (b) which is more than 60 days past due after the original due date
(c) (c) which
is owing by an Account Debtor for which 50.0% or more of the Accounts owing from such Account Debtor and its Affiliates are ineligible
pursuant to clause (b) above;
(d) (d) which
is owing by an Account Debtor to the extent the aggregate amount of Accounts owing from such Account Debtor and its Affiliates to the
Loan Parties exceeds 20.0% (or such higher percentage as the Administrative Agent may establish from time to time in its Permitted Discretion)
of the aggregate Eligible Accounts Receivable;
(e) (e) which
does not conform in all material respects to the representations and warranties in respect of Accounts contained in this Agreement or
in the Security Agreement (or the Canadian Security Agreement, as applicable);
(f) (f) which
(i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) represents a progress billing,
(iii) is contingent upon the Loan Parties’ completion of any further performance, (iv) represents a sale on a bill-and-hold, guaranteed
sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any other repurchase or return basis, (v) relates to payments
of interest, fees or late charges (but any resulting ineligibility shall be limited to the extent of such payments), (vi) is not invoiced
or evidenced by other documentation reasonably satisfactory to the Administrative Agent (in its Permitted Discretion) which has been sent
to the Account Debtor (other than any Eligible Unbilled Accounts Receivable), (vii) which is a duplicate invoice or (viii) relates to
a sale to a Person for personal, family or household purposes;
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(g) (g) which
is owed by an Account Debtor which has (i) applied for, suffered, or consented to the appointment of any receiver, interim receiver, monitor,
custodian, trustee or liquidator of its assets, (ii) had possession of all or a material part of its property taken by any receiver,
interim receiver, monitor, custodian, trustee or liquidator, (iii) filed, or had filed against it, any request or petition for liquidation,
reorganization, arrangement, receivership, adjustment of debts, adjudication as bankrupt, winding-up, or voluntary or involuntary case
or proceeding under the Bankruptcy Code or any other Debtor Relief Laws, (iv) admitted in writing its inability, or is generally unable
to, pay its debts as they become due, (v) become insolvent, or (vi) ceased operation of its business, unless, in the case of clauses
(g)(iii) through (g)(vi) above, such Account Debtor has caused the issuance of a letter of credit in favor of the applicable
Loan Party fully securing the payment of such Account, which letter of credit is reasonably satisfactory to the Administrative Agent;
(h) (h) which
is owed by any Account Debtor which has sold all or substantially all of its assets, unless such Account Debtor has caused the issuance
of a letter of credit in favor of the applicable Loan Party fully securing the payment of such Account, which letter of credit is reasonably
satisfactory to the Administrative Agent;
(i) (i) which
is owed by an Account Debtor which (i) does not maintain its chief executive office in the U.S. or Canada or (ii) is not organized under
applicable Law of the U.S. or Canada or any state or province thereof unless, in any case, such Account is (x) backed by a Letter of Credit
reasonably acceptable to the Administrative Agent which is in the possession of, has been assigned to and is directly drawable by the
Administrative Agent or (y) covered by credit insurance reasonably acceptable to the Administrative Agent;
(j) (j) which
is owed in any currency other than U.S. Dollars or Canadian dollars;
(k) (k) Accounts
in an aggregate amount exceeding $1,000,000 which are owed by (i) the government (or any department, agency, public corporation or instrumentality
thereof) of any country other than the U.S. or Canada unless such Account is (x) backed by a letter of credit reasonably acceptable to
the Administrative Agent and, if requested by the Administrative Agent, which is in the possession of the Administrative Agent or (y)
covered by credit insurance reasonably acceptable to the Administrative Agent, or (ii) the government of the U.S. or any Canadian federal,
provincial or territorial Governmental Authority, or any department, agency, public corporation or instrumentality thereof, unless the
Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.) or the
Financial Administration Act (Canada) or similar applicable Law, as amended, has been complied with;
(l) (l) which
is owed by any Affiliate, employee, officer, director, agent or stockholder of any Loan Party;
(m) (m) which
is owed by an Account Debtor or any Affiliate of such Account Debtor to which any Loan Party is indebted, including for exclusivity contract
payments (but only to the extent of such indebtedness) or is subject to any security, deposit, progress payment, retainage or other similar
advance made by or for the benefit of an Account Debtor, in each case only to the extent thereof;
(n) (n) which
has been short-paid or is subject to any chargeback, counterclaim, deduction, defense, setoff, rebate paid or to be paid or dispute notice
of which is provided to the Borrower or any of its Subsidiaries (including, without limitation, any potential offset of the type identified
as “A/R Account Reconciliation Ineligibles” and “G/L Accrual Analysis Ineligibles” in the initial field examination
report delivered to the Lead Arrangers prior to the Closing Date) but only to the extent of any such counterclaim, deduction, defense,
setoff, rebate or dispute; provided that no Account that otherwise constitutes an Eligible Accounts Receivable shall be rendered
ineligible by virtue of this clause (n) to the extent, but only to the extent, that the Account Debtor’s right of setoff
is limited by an enforceable agreement that is reasonably satisfactory to the Administrative Agent;
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(o) (o) which
is evidenced by any promissory note, chattel paper or instrument;
(p) (p) which
does not comply in all material respects with the requirements of all applicable Laws and regulations, whether federal, state, provincial,
territorial, municipal, local or foreign;
(q) (q) for
which (i) the goods giving rise to such Account have not been shipped and (except in the case of any Eligible Unbilled Accounts Receivable)
billed to the Account Debtor or (ii) the services giving rise to such Account have not been performed and (except in the case of any Eligible
Unbilled Accounts Receivable) billed to the Account Debtor;
(r) (r) which
has been identified by any Loan Party to be at risk, subject to a legal payment plan or deemed uncollectable;
(s) (s) which
is subject to a supply chain or factoring arrangement; or
(t) (t) any
Account with respect to which the Administrative Agent shall not have received or prepared a Report in respect of such Account, which
Report shows results reasonably satisfactory to the Administrative Agent; it being agreed that, in connection with any acquisition permitted
hereunder where the Acquired Borrowing Base (as defined below) exceeds $20 million, the Administrative Agent shall take such actions as
are reasonably required to obtain or prepare such a Report within 90 days of such acquisition of such Account (which Report shall be at
the expense of the Borrower and shall not be considered to be any limitation on field examinations at the expense of the Borrower provided
in Section 6.10(b)) promptly upon the request of the Borrower; provided that, subject to the immediately following proviso,
until the earlier of (x) the date on which the Administrative Agent receives a Report in respect of such Accounts showing results reasonably
satisfactory to it and (y) solely with respect to Accounts in connection with any acquisition permitted hereunder where the Acquired Borrowing
Base (as defined below) exceeds $20 million, the date that is 90 days after the acquisition thereof, such Accounts shall constitute Eligible
Accounts Receivable; provided, further, if the inclusion of all Accounts acquired pursuant to any acquisition permitted
hereunder (collectively, the “Acquired Borrowing Base”) would, in the aggregate, cause the Borrowing Base in respect
of such Accounts (the “Post-Acquisition Borrowing Base”) to exceed 20% of the Borrowing Base in existence at such time
prior to giving effect to such acquisition (the “Pre-Acquisition Borrowing Base”), then this clause (t) shall exclude
all such Accounts to the extent such Accounts would cause the Post-Acquisition Borrowing Base to exceed 20% of the Pre-Acquisition Borrowing
Base.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.07(b)(v); provided that the following Persons shall not be Eligible Assignees: (a) any Defaulting Lender and (b) any Person that is a Disqualified Lender.
“Eligible Unbilled Accounts Receivable” means, at any date of determination, the aggregate amount of all Eligible Accounts Receivable of the Loan Parties with respect of which an invoice has not been sent to the applicable Account Debtor and the Account owing to the Loan Party has been fully earned and has existed for 30 days or less.
“EMU” means the Economic and Monetary Union as contemplated in the EU Treaty.
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“EMU Legislation” means the legislative measures of the EMU for the introduction of, changeover to, or operation of the Euro in one or more member states.
“Environmental Claim” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations by any Governmental Authority, or proceedings with respect to any Environmental Liability or pursuant to Environmental Law, including those (a) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law and (b) by any Person seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief pursuant to any Environmental Law.
“Environmental Laws” means any and all Laws relating to the protection of the environment or, to the extent relating to exposure to Hazardous Materials, human health.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of the Restricted 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.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under or issued pursuant to any Environmental Law.
“Equity Contribution” means the direct or indirect contribution (including pursuant to a merger) to the Borrower (or a direct or indirect parent thereof) by the SPAC, the Sponsors, members of management of the Borrower and other co-investors and its Subsidiaries in exchange for common or preferred equity not constituting Disqualified Equity Interests of the Borrower (or such direct or indirect parent), which, with respect to any preferred equity of the Borrower, if any, will be on terms reasonably acceptable to the Lead Arrangers. Any such parent will contribute, or cause to be contributed, all such cash and equity to the Borrower immediately after the initial funding of the Facilities and the consummation of the merger. The aggregate amount of the Equity Contribution will represent not less than 35% of the sum of (i) the aggregate principal amount of the Initial Revolving Loans funded under this Agreement on the Closing Date, other than letters of credit and amounts borrowed to cash collateralize letters of credit or to fund working capital, (ii) the aggregate principal amount of the Initial Term Loans funded on the Closing date under the Term Loan Credit Agreement and the gross cash proceeds of the Senior Secured Notes and (iii) the amount of such cash and fair market value of rollover equity contributed, in each case, on the Closing Date.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in, including any limited or general partnership interest and any limited liability company membership interest) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
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“ERISA Affiliate” means any trade or business (whether or not incorporated) that together with any Loan Party is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA. For the avoidance of doubt, when any provision of this Agreement relates to a past event or period of time, the term “ERISA Affiliate” includes any Person who was, as to the time of such past event or period of time, an ERISA Affiliate within the meaning of the preceding sentence.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any of their respective ERISA Affiliates 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 any Loan Party or any of their respective ERISA Affiliates from a Multiemployer Plan, written notification of any Loan Party or any of their respective ERISA Affiliates concerning the imposition of Withdrawal Liability or written notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA; (d) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, 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) the imposition of any liability under Title IV of ERISA, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any of their respective ERISA Affiliates; (f) the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) with respect to any Pension Plan; (g) the application for a minimum funding waiver under Section 302(c) of ERISA with respect to a Pension Plan; (h) the imposition of a lien under Section 303(k) of ERISA with respect to any Pension Plan or (i) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 303 of ERISA).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EU Treaty” means the Treaty on European Union.
“Euro” and “€” mean the single currency of the Participating Member States introduced in accordance with the provisions of Article 109(i)4 of the EU Treaty.
“Eurocurrency
Rate” means:
(a)
for any Interest Period with respect to a Eurocurrency
Rate Loan denominated in Dollars, the rate per annum equal to (i) the ICE LIBOR Rate (“ICE LIBOR”), as published
on the applicable Thomson Reuters screen page (or such other commercially available source providing
quotations of ICE LIBOR 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 Dollar deposits (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such rate is not available at such time
for any reason, the rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by the Administrative
Agent to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period;
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(b)
for any Interest Period with respect to a Eurocurrency Rate Loan denominated
in Canadian Dollars, the rate per annum equal to the CDOR Rate;
(c)
for any Interest Period with respect to a Eurocurrency Rate Loan denominated in an Alternative Currency other
than Canadian Dollars, the rate per annum equal to (i) the rate, as published on the applicable Thomson Reuters screen page (or
such other commercially available source providing quotations of LIBOR 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 such Alternative
Currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such rate is
not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits
in such Alternative Currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by the Administrative
Agent to major banks in the London interbank market at their request at approximately 11:00 a.m. (London time) two Business Days prior
to the commencement of such Interest Period; and
(d)
for any interest calculation with respect to a Base Rate Loan on any date, the
rate per annum equal to (i) ICE LIBOR, at approximately 11:00 a.m., London
time determined two Business Days prior to such date for Dollar deposits being delivered in the London interbank market for a
term of one month commencing that day or (ii) if such published rate is not available at such time for
any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery
on the date of determination in Same Day Funds in the approximate amount of the Base Rate Loan being made or maintained and with a term
equal to one month would be offered by the Administrative Agent to major banks in the London interbank eurodollar market at their request
at the date and time of determination.
“Eurocurrency
Rate Loan” means a Loan, whether denominated in Dollars, Canadian Dollars or any Alternative Currency, that
bears interest at a rate based on clause (a),
(b) or (c), as applicable, of the definition of “Eurocurrency
Rate.”
“Event of Default” has the meaning specified in Section 9.01.
“Excess Availability” shall mean, at any time without duplication, the remainder of:
(a) (a) the
Line Cap at such time, minus
(b) (b) the
sum of the Total Utilization of Revolving Commitments of all Lenders at such time.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
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“Exchange Rate” means, on any date with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth at approximately 11:00 a.m., London time, on such date on the applicable Bloomberg page for such currency. In the event that such rate does not appear on any Bloomberg page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying the exchange rates as may be selected by the Administrative Agent, or, in the event no such service is selected, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of the relevant currency for delivery two Business Days later; provided that, if at the time of any such determination, for any reason no such spot rate is being quoted, the Administrative Agent, after consultation with the Borrower, may use any reasonable method that it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.
“Excluded Accounts” means deposit accounts (a) established (or otherwise maintained) by the Loan Parties that do not have cash balances at any time exceeding $5,000,000 in the aggregate for all such accounts, (b) solely containing cash allocated as proceeds of the sale of Term Priority Collateral pursuant to the Closing Date ABL Intercreditor Agreement, (c) any Trust Fund Account, (d) used by the Loan Parties exclusively for disbursements and payments (including payroll) in the ordinary course of business, (e) that are zero balance accounts, (f) subject to a Lien permitted under Section 7.01(oo) or (g) that are located outside of the United States and Canada (other than any such deposit account containing the proceeds of a sale of ABL Priority Collateral).
“Excluded Asset” has the meaning specified in the Security Agreement or the Canadian Security Agreement, as applicable.
“Excluded Equity Interests” has the meaning specified in the Security Agreement or the Canadian Security Agreement, as applicable.
“Excluded Subsidiary” means:
(a) (a) any
Subsidiary that is not a wholly owned Subsidiary of a Loan Party;
(b) (b) any
Foreign Subsidiary (other than a Canadian Subsidiary) of the Borrower or of any direct or indirect Domestic Subsidiary or Foreign Subsidiary
(other than a Canadian Subsidiary);
(c) (c) any
FSHCO;
(d) (d) any
Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary (other than a Canadian Subsidiary) that is a CFC;
(e) (e) any
Subsidiary that is prohibited or restricted by applicable Law from providing a Guaranty or by a binding contractual obligation existing
on the Closing Date or at the time of the acquisition of such Subsidiary (and not incurred in contemplation of such acquisition) from
providing a Guaranty (provided that such contractual obligation is not entered into by the Borrower or its Restricted Subsidiaries
principally for the purpose of qualifying as an “Excluded Subsidiary” under this definition) or if such Guaranty would require
governmental (including regulatory) or third party (other than Holdings, the Borrower or a Restricted Subsidiary) consent, approval, license
or authorization, unless such consent, approval, license or authorization has been obtained;
(f) (f) any
special purpose securitization vehicle (or similar entity) including any Securitization Subsidiary created pursuant to a transaction permitted
under this Agreement;
(g)
(g) any Subsidiary that is a not-for-profit
organization;
(h)
(h) any Captive Insurance Subsidiary;
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(i)
(i) any other Subsidiary with respect to
which, as reasonably determined by the Borrower in good faith and in consultation with the Administrative Agent, the cost or other consequences
(including any material adverse tax consequences) of providing the Guaranty shall be excessive in view of the benefits to be obtained
by the Lenders therefrom;
(j)
(j) any other Subsidiary to the extent the
provision of a Guaranty by such Subsidiary would result in material adverse tax consequences to Holdings (or any Parent Entity to the
extent such material adverse tax consequences are related to its ownership of the Equity Interests in Holdings or the Borrower and its
Restricted Subsidiaries), the Borrower or any of the Restricted Subsidiaries as reasonably determined by the Borrower in good faith in
consultation with the Administrative Agent other than an adverse tax consequence under Section 956 of the Code with respect to the provision
of a Guaranty by a Canadian Loan Party or a U.S. Subsidiary of a Canadian Loan Party to the extent that such adverse tax consequence is
not attributable to a Change in Law after the date such Canadian Loan Party became a Loan Party;
(k)
(k) any Unrestricted Subsidiary; and
(l)
(l) any Immaterial Subsidiary;
provided that the Borrower, in its sole discretion, may cause any Restricted Subsidiary that is a Domestic Subsidiary or a Canadian Subsidiary that qualifies as an Excluded Subsidiary under clauses (a) through (l) above to become a Guarantor in accordance with the definition thereof (subject to completion of any requested “know your customer” and similar requirements of the Administrative Agent) and thereafter such Subsidiary shall not constitute an “Excluded Subsidiary” (unless and until the Borrower elects, in its sole discretion, to designate such Persons as an Excluded Subsidiary); provided, further, that the Borrower may designate such Subsidiary as an Excluded Subsidiary so long as such Subsidiary otherwise qualifies as an Excluded Subsidiary at the time of such designation.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any keepwell, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” has the meaning specified in Section 3.01(a).
“Existing Earnouts and Unfunded Holdbacks” means those earnouts and unfunded holdbacks existing on the Closing Date.
“Existing Indebtedness” has the meaning specified in the Recitals.
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“Existing Indebtedness Documents” means (i) that certain First Lien Credit Agreement, dated as of July 25, 2014, by and among Holdings, the Borrower, the lenders from time to time party thereto, and Bank of America, N.A., as administrative agent, as amended, restated, supplemented or otherwise modified from time to time, (ii) that certain Second Lien Credit Agreement, dated as of July 25, 2014, by and among Holdings, the Borrower, the lenders from time to time party thereto, and Bank of America, N.A., as administrative agent, as amended, restated, supplemented or otherwise modified from time to time and (iii) that certain Receivables Financing Agreement, dated as of April 24, 2020, by and among Advantage Financing LLC, the Borrower, as initial servicer, the lenders from time to time party thereto and PNC Bank, National Association, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Existing Letter of Credit” has the meaning specified in Section 2.04(j).
“Extended Commitments” means Extended Revolving Commitments.
“Extended Loans” means Extended Revolving Loans.
“Extended Revolving Commitments” means the Revolving Commitments held by an Extending Lender.
“Extended Revolving Loans” means the Revolving Loans made pursuant to Extended Revolving Commitments.
“Extending Lender” means each Lender accepting an Extension Offer.
“Extension” has the meaning specified in Section 2.18(a).
“Extension Amendment” has the meaning specified in Section 2.18(b).
“Extension Offer” has the meaning specified in Section 2.18(a).
“Facility” means the Revolving Loans, the Swing Line Loans, Extended Revolving Commitments or any Extended Revolving Loans, as the context may require.
“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 fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities implementing such Sections of the Code.
“FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended or modified from time to time.
“Federal Funds Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate for any day is less than zero, the Federal Funds Rate for such day will be deemed to be zero.
“Financial Covenant Event of Default” has the meaning specified in Section 9.01(b).
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“First Lien Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Secured Net Debt under (i) this Agreement, (ii) the Senior Secured Notes, (iii) any Pari Passu Lien Debt, (iv) the Term Loan Facility and (v) Indebtedness secured on a pari passu basis with the Obligations on the ABL Priority Collateral, in each case, outstanding as of the last day of such Test Period to (b) Consolidated Adjusted EBITDA of the Borrower for such Test Period.
“Fixed Charge Coverage Ratio” means, as of any date, the ratio of:
(a) (i) Consolidated Adjusted EBITDA for the Test Period ended as of such date or, as applicable, most recently ended prior to such date, less
(ii) the aggregate amount of federal, state, local and foreign income taxes paid or payable in cash for the Test Period ended as of such date or, as applicable, most recently ended prior to such date, less
(iii) Non-Financed Capital Expenditures for the Test Period that were paid in cash during such Test Period, to
(b) Fixed Charges for the Test Period as of such date.
“Fixed Charges” means, with respect to any Test Period, without duplication, the sum of (a) Consolidated Cash Interest Expense, plus (b) the aggregate amount of scheduled principal payments in respect of Indebtedness for borrowed money of the Borrower and its Restricted Subsidiaries paid in cash during such period (other than payments made by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary), plus (c) solely for the purpose of testing the satisfaction of the Payment Conditions in connection with a Restricted Payment, cash dividends paid in cash during such period pursuant to Section 7.06(r).
“Foreign Lender” has the meaning specified in Section 3.01(b).
“Foreign Plan” means any material employee benefit plan, program or agreement maintained or contributed to by, or entered into with, Holdings or any Restricted Subsidiary of Holdings with respect to employees employed outside the United States and Canada (other than benefit plans, programs or agreements that are mandated by applicable Laws).
“Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Banks, such Defaulting Lender’s Pro Rata Share of the outstanding Letters of Credit Obligations other than such 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 Pro Rata Share of the outstanding Obligations with respect to Swing Line Loans extended by the Swing Line Lender other than such 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.
“FSHCO” means any direct or indirect Subsidiary of Holdings (other than the Borrower) that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) in one or more Foreign Subsidiaries (unless all such Foreign Subsidiaries are Canadian Loan Parties) that are CFCs or other FSHCOs.
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“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
“GAAP” means generally accepted accounting principles in the United States, as in effect from time to time; provided however that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision of a Loan Document to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof (including through the adoption of IFRS (any such change, an “Accounting Change”)) on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof (including through the adoption of IFRS), then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“General Asset Sale Basket” has the meaning specified in Section 7.05(j).
“Global Intercompany Note” means a promissory note substantially in the form of Exhibit H executed by Holdings, the Borrower and each wholly owned Restricted Subsidiary.
“Governmental Authority” means the government of the United States, Canada or any other nation, or of any political subdivision thereof, whether state, provincial, territorial, municipal 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).
“Grant Event” means the occurrence of any of the following:
(a) (a) the
formation or acquisition by a Loan Party of a new wholly owned Subsidiary (other than an Excluded Subsidiary);
(b) (b) the
designation in accordance with Section 6.13 of a wholly owned Subsidiary (other than an Excluded Subsidiary) of any Loan Party
as a Restricted Subsidiary;
(c) (c) any
Person (other than an Excluded Subsidiary) becoming a wholly owned Subsidiary of a Loan Party;
(d) (d) any
wholly owned Restricted Subsidiary of a Loan Party ceasing to be an Excluded Subsidiary; or
(e) (e) the
designation of any Restricted Subsidiary as a Guarantor pursuant to the proviso in the definition of “Excluded Subsidiary”.”
“Granting Lender” has the meaning specified in Section 11.07(g).
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“GST” means all amounts payable under the Excise Tax Act (Canada) or any similar legislation in any other jurisdiction of Canada, including Quebec sales tax imposed pursuant to an Act respecting the Québec sales tax and “HST” means all amounts payable as harmonized sales tax in the Provinces of Ontario, Nova Scotia, Newfoundland, New Brunswick and Prince Edward Island under the Excise Tax Act (Canada).
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary 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 monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary 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 monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary 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 (other than a Permitted Lien) on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary, Permitted Liens and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means Holdings and each Restricted Subsidiary that executed a counterpart to the Guaranty (or a joinder thereto) on the Closing Date or thereafter pursuant to Section 6.11, in each case, other than any Excluded Subsidiaries.
“Guaranty” means (a) the guaranty made by Holdings and the other Guarantors in favor of the Administrative Agent on behalf of the Secured Parties substantially in the form of Exhibit E and (b) each other guaranty and guaranty supplement delivered pursuant to Section 6.11.
“Guaranty Release Event” has the meaning specified in Section 10.11(b)(i)(H).
“Guaranty Supplement” means the “ABL Guarantee Supplement” as defined in the Guaranty.
“Hazardous Materials” means any hazardous or toxic chemicals, materials, substances or waste which is listed, classified or regulated by any Governmental Authority as “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic wastes,” “contaminants” or “pollutants,” or words of similar import, under any Environmental Law, including petroleum or petroleum products (including gasoline, crude oil or any fraction thereof), asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and urea formaldehyde.
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“Hedge Agreement” means any agreement with respect to (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar 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.
“Hedge Bank” means any Person that is an Agent, a Lender, a Lead Arranger or an Affiliate or branch of any of the foregoing on the Closing Date (with respect to any Secured Hedge Agreement entered into on or prior to the Closing Date) or at the time it enters into a Secured Hedge Agreement, in its capacity as a party thereto, whether or not such Person subsequently ceases to be an Agent, a Lender, a Lead Arranger or an Affiliate or branch of any of the foregoing.
“HMT” means HerHis
Majesty’s Treasury of the United Kingdom.
“Holdings” has the meaning specified in the preliminary statements to this Agreement, together with its successors and assigns permitted hereunder.
“ICE
LIBOR” means the London Interbank Offered Rate set by ICE Benchmark Administration Limited.
“Identified Transaction” has the meaning specified in Section 10.11(c).
“IFRS” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.
“Immaterial Subsidiary” means any Subsidiary of the Borrower other than a Material Subsidiary or any Co-Borrower.
“Incremental Amendment” has the meaning specified in Section 2.16(e).
“Incremental Amount” means the greater of (i) $175,000,000 and (ii) the Borrowing Base then in effect at the time of the effectiveness of such Incremental Amendment; provided, that the Incremental Revolving Facility effectuated pursuant to Amendment No. 2 shall not be counted against the foregoing thresholds.
“Incremental Equivalent Debt”
has the meaning assigned to such term in the Term Loan Credit Agreement (as in effect on the date hereofClosing
Date).
“Incremental Facility” has the meaning specified in Section 2.16(a).
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“Incremental Revolving Facilities” has the meaning specified in Section 2.16(a).
“Incremental Revolving Facility Lender” has the meaning specified in Section 2.16(i).
“Incremental Revolving Loans” has the meaning specified in Section 2.16(a).
“Indebtedness” means, with respect to any Person, without duplication,
(a) (a) any
indebtedness (including principal or premium) of such Person in respect of borrowed money; any indebtedness evidenced by bonds, notes,
debentures, loan agreements or similar instruments; letters of credit or bankers’ acceptances (or, without double counting, reimbursement
agreements in respect thereof), and Capitalized Lease Obligations or the balance deferred and unpaid of the purchase price of any property
to the extent that the same would be required to be shown as a long-term liability on the balance sheet for such Person prepared in accordance
with GAAP;
(b) (b) (i) to
the extent not otherwise included, any guarantee obligation by such Person of the obligations of the type referred to in clause (a)
of another Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement
of negotiable instruments for collection in the ordinary course of business and (ii) to the extent not otherwise included, the obligations
of the type referred to in clause (a) of another Person secured by a Lien (other than a Permitted Lien) on any property owned by
such Person, whether or not such obligations are assumed by such Person and whether or not such obligations would appear upon the balance
sheet of such Person; provided that the amount of such Indebtedness for purposes of this clause (ii) will be the lesser
of the fair market value of such property at such date of determination and the amount of Indebtedness so secured;
(c) (c) net
obligations of such Person under any Hedge Agreement to the extent such obligations would appear as a net liability on a balance sheet
of such Person (other than in the footnotes) prepared in accordance with GAAP; and
(d) (d) all
obligations of such Person in respect of Disqualified Equity Interests;
provided that, notwithstanding the foregoing, Indebtedness will be deemed not to include (1) contingent obligations incurred in the ordinary course of business unless and until such obligations are non-contingent, (2) trade payables, (3) customary purchase money obligations incurred in the ordinary course, (4) earn-outs, purchase price holdbacks or similar obligations, (5) intercompany liabilities in the ordinary course of business, (6) Permitted Liens, (7) loans and advances made by Loan Parties having a term not exceeding 364 days (inclusive of any roll over or extension of terms (such loans and advances, “Short Term Advances”)), (8) Indebtedness of any direct or indirect parent company appearing on the balance sheet of such Person solely by reason of push down accounting under GAAP and (9) lease obligations other than in respect of a Capitalized Lease. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date.
“Indemnified Liabilities” has the meaning specified in Section 11.05(e).
“Indemnitees” has the meaning specified in Section 11.05.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged and that is independent of the Borrower and its Affiliates.
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“Information” has the meaning specified in Section 11.08.
“Initial Revolving Borrowing” means one or more borrowings of Revolving Loans on the Closing Date, not to exceed the sum of (a) $50,000,000 plus (b) amounts necessary to backstop or cash collateralize, or to replace, existing letters of credit issued for the account of the Borrower or its Subsidiaries outstanding on the Closing Date and to refinance any revolving facility of the Borrower or its Subsidiaries (which respect to which any such refinancing of any revolving facility in an amount not to exceed $50,000,000 in the aggregate), plus (c) amounts necessary to finance working capital needs on the Closing Date, plus (d) an additional amount (not to exceed $100,000,000) equal to the redemptions of equity of the SPAC; provided that, without limitation, Letters of Credit may be issued on the Closing Date to backstop or replace letters of credit, guarantees and performance or similar bonds outstanding on the Closing Date.
“Initial Term Loans” has the meaning assigned to such term in the Term Loan Credit Agreement.
“Intellectual Property” has the meaning specified in the Security Agreement or the Canadian Security Agreement, as applicable.
“Intellectual Property Security Agreements” has the meaning specified in the Security Agreement or the Canadian Security Agreement, as applicable.
“Intercreditor Agreements” means the Closing Date ABL Intercreditor Agreement or any other intercreditor agreement governing lien priority, in each case reasonably acceptable to the Collateral Agent and executed from time to time pursuant to the terms hereof.
“Interest Coverage Ratio” means, as of any date, the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Interest Expense, in each case for the Test Period as of such date.
“Interest Payment Date” means,
(a) as to any EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan, the last day of each Interest Period applicable to such EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan and the applicable Maturity Date; provided that if any Interest Period
for a Eurocurrencysuch Term
SOFR Loan or Alternative Currency Term Rate Loan exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates, and (b) as to any Base Rate Loan (including a Swing Line
Loan denominated in Dollars) or Alternative Currency Daily Rate Loan (including
a Swing Line Loan denominated in Canadian Dollars), the first day of each fiscal quarter and the applicable Maturity Date.
“Interest Period” means,
as to each EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan, the period commencing on the date such EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan is disbursed or converted to or continued as a EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan and ending on the date one, two, three
or six months thereafter, (in
each case, subject to availability for the interest rate applicable to the relevant currency), or to the extent consented to
by each applicable Lender, twelve months (or such period of less than one month as may be consented to by each applicable Lender), as
selected by the Borrower in its Committed Loan Notice; provided that:
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(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 such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
(b) any Interest Period (other than an Interest Period having a duration of less than one month) 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 shall extend beyond the applicable Maturity Date.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, by means of:
(a) the purchase or other acquisition (including by merger, amalgamation or otherwise) of Equity Interests or debt or other securities of another Person;
(b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, but excluding any Short Term Advances; or
(c) the purchase or other acquisition (in one transaction or a series of transactions, including by merger, amalgamation or otherwise) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of another Person.
provided that none of the following shall constitute an Investment (i) intercompany advances between and among the Borrower and its Restricted Subsidiaries relating to their cash management, tax and accounting operations in the ordinary course of business and (ii) intercompany loans, advances or Indebtedness between and among the Borrower and its Restricted Subsidiaries having a term not exceeding 364 days and made in the ordinary course of business.
“Investment Grade Eligible Accounts” shall mean Eligible Accounts Receivable that are owing by an Account Debtor who has an Investment Grade Rating at such time.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other nationally recognized statistical rating agency selected by the Borrower.
“IRS” means Internal Revenue Service of the United States.
“Issuance Notice” means an Issuance Notice in respect of letters of credit substantially in the form of Exhibit A-2.
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“Issuing Bank” means as the
context may require, (a) Bank of America, N.A, (b) MUFG Union Bank, N.A., (c) PNC Bank, National Association, (d) Wells Fargo Bank, National
Association, (e) U.S. Bank National Association, (f) Zions Bancorporation, N.A., (g) Deutsche Bank AG New York Branch,
(h) Morgan Stanley Senior Funding Inc. and any other Lender that, at the request of the Borrower and with the consent
of the Administrative Agent (not to be unreasonably withheld), agrees to become an Issuing Bank in accordance with Section 2.04(k)
or (m) and (ih)
solely with respect to any Existing Letter of Credit (and any amendment, renewal or extension thereof in accordance with this Agreement),
the Lender or Affiliate or branch of a Lender that issued such Existing Letter of Credit. Each Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Bank (or other financial institution), in which
case the term “Issuing Bank” shall include any such Affiliate or branch (or other financial institution) with respect to Letters
of Credit issued by such Affiliate or branch (or other financial institution).
“Joint Bookrunners” means Bank of America, N.A., Morgan Stanley Senior Funding, Inc., Deutsche Bank Securities Inc., PNC Bank, National Association, Wells Fargo Bank, National Association, MUFG Union Bank, N.A. and U.S. Bank National Association.
“Joint Venture” means (a) any Person which would constitute an “equity method investee” of the Borrower or any of the Restricted Subsidiaries and (b) any Person in whom the Borrower or any of the Restricted Subsidiaries beneficially owns any Equity Interest that is not a Restricted Subsidiary.
“Joint Venture Investments” means Investments in any Joint Venture or Unrestricted Subsidiary in an aggregate amount not to exceed the greater of (a) 25.00% of Closing Date EBITDA and (b) 25.00% of TTM Consolidated Adjusted EBITDA as of the applicable date of determination provided that, in the case of any Investment in an Unrestricted Subsidiary, no Specified Event of Default has occurred or is continuing or would result therefrom.
“Judgment Currency” has the meaning specified in Section 2.21(b).
“Junior Debt Repayment” has the meaning specified in Section 7.09(a).
“Junior Financing” means any Material Indebtedness that is contractually subordinated in right of payment to the Obligations expressly by its terms.
“Junior Financing Documentation” means any documentation governing any Junior Financing.
“Junior Lien Debt” means any Indebtedness that is intended by the Borrower to be secured by a Lien on all or any portion of the Collateral that has a priority that is contractually (or otherwise) junior in priority to the Lien on such Collateral that secure the Term Loan Obligations.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Extended Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, 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.
“LCA Election” has the meaning specified in Section 1.08(f).
“LCA Test Date” has the meaning specified in Section 1.08(f).
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“Lead Arrangers” means
Bank of America, N.A., Morgan Stanley Senior Funding, Inc. and Deutsche Bank Securities Inchas
the meaning specified in the Recitals.
“Lender” has the meaning
specified in the introductory paragraph to this Agreement (and, for the avoidance of doubt, includes each Revolving Lender), and their
respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.” Each Additional
Lender shall be a Lender to the extent any such Person has executed and delivered an Incremental Amendment, as the case may be, and to
the extent such Incremental Amendment shall have become effective in accordance with the terms hereof and thereof, and each Extending
Lender shall continue to be a Lender. As of the ClosingAmendment
No. 2 Effective Date, Schedule 2.01 sets forth the name of each Lender. Unless the context otherwise requires,
the term “Lenders” includes the Issuing Banks and the Swing Line Lender. Notwithstanding the foregoing, no Disqualified Lender
that purports to become a Lender hereunder (notwithstanding the provisions of this Agreement that prohibit Disqualified Lenders from becoming
Lenders) shall be entitled to any of the rights or privileges enjoyed by the other Lenders (including with respect to voting, information
and lender meetings) and shall be deemed for all purposes to be, at most, a Defaulting Lender (except for purposes of Section 2.19(d))
until such time as such Disqualified Lender no longer owns any Loans or Commitments.
“Lender Recipient Parties” mean, collectively, the Lenders, the Swing Line Lender and the Issuing Banks.
“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 Borrower and the Administrative Agent.
“Letter of Credit” means a letter of credit issued or to be issued by any Issuing Bank pursuant to this Agreement, including Existing Letters of Credit, which letter of credit shall be (a) a standby letter of credit or (b) solely to the extent agreed by the applicable Issuing Bank in its sole discretion, a commercial or “trade” letter of credit.
“Letter of Credit Advance” means, as to any Revolving Lender, such Lender’s funding of its participation in any Letter of Credit Borrowing in accordance with its Pro Rata Share.
“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 Issuing Bank, together with an Issuance Notice.
“Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed by the Borrower on the date when made or refinanced as a Revolving Loan Borrowing.
“Letter of Credit Documents” means, as to any Letter of Credit, each Letter of Credit Application and any other document, agreement and instrument entered into by the applicable Issuing Bank and the Borrower or in favor of such Issuing Bank and relating to such Letter of Credit.
“Letter of Credit Expiration Date” means the day that is five Business Days prior to the Revolving Commitment Maturity Date or such other day as the Administrative Agent, the applicable Issuing Bank and the Borrower may agree (or, if such day is not a Business Day, the immediately preceding Business Day).
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“Letter of Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or the extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“Letter of Credit Obligations” means, at any time, the aggregate of all liabilities at such time of any Loan Party to each Issuing Bank with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations at such time and (b) the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding.
“Letter of Credit Percentage”
means, (a) initially with respect to (i) Bank of America, N.A., 22.50%, (ii) MUFG Union Bank, N.A., 15.00%,
(iii) PNC Bank, National Association, 15.00%, (iv) Wells Fargo Bank, National Association, 15.00%, (v) U.S. Bank National Association,
10.00%, (vi) Zions Bancorporation, N.A., 10.00%, (vii) Deutsche Bank AG New York Branch, 6.25% and (viii) Morgan Stanley Senior Funding
Inc., 6.25%each Issuing Bank, the percentage set forth on Schedule 2.01
opposite such Issuing Bank under the caption “Letter of Credit Percentage” (in each case, as may be reduced to
reflect any percentage allocated to another Issuing Bank pursuant to the immediately succeeding clause (b)) and (b) from time to time
after the ClosingAmendment
No. 2 Effective Date with respect to any other Issuing Bank, subject to Section 11.01, a percentage to be agreed between
the Borrower and such Issuing Bank.
“Letter of Credit Sublimit” means the greater of (a) $150,000,000 and (b) such higher amount as the Borrower, the Required Revolving Lenders and the applicable Issuing Bank(s) may from time to time agree.
“Letter of Credit Usage” means, as of any date of determination, the sum of (a) the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding and (b) the aggregate amount of all Reimbursement Obligations outstanding at such time.
“LIBO
Screen Rate” has the meaning specified in Section 11.01.
“LIBOR
Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition
of Base Rate, Interest Period, timing and frequency of determining rates and making
payments of interest and other technical, administrative or operational matters as may be appropriate, in the discretion of the Administrative
Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and
to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or,
if the Administrative Agent determines that adoption of any portion of such market practice is not administratively
feasible or that no market practice for the administration of such LIBOR Successor Rate exists,
in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration
of this Agreement).
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory, deemed or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing); provided that in no event shall an operating lease in and of itself be deemed a Lien.
“Lien Release Event” has the meaning specified in Section 10.11(a)(i).
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“Limited Condition Acquisition” means any Acquisition Transaction or other Investment by the Borrower or one or more of its Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Line Cap” shall mean the lesser of (a) the aggregate amount of the Commitments at such time and (b) the Borrowing Base then in effect.
“Liquidity Condition” has
the meaning set forth in the definition of “Cash Dominion Period”.”
“Loan” means any of a Revolving Loan, a Swing Line Loan and a Protective Advance made by a Lender to the Borrower under Article II (including Section 2.16).
“Loan Documents” means, collectively,
(a) this Agreement, (b) the NotesAmendment
No. 1, (c) Amendment No. 2, (d) the Notes, (e) any Refinancing
Amendment, Incremental Amendment or Extension Amendment, (df) the
Guaranty, (eg) the
Collateral Documents, (fh)
the Intercreditor Agreements, and (gi) the
Global Intercompany Note.
“Loan Parties” means, collectively, the Borrower and the Guarantors; provided that prior to the consummation of the Acquisition, neither the Acquired Business nor any of its Subsidiaries shall be Loan Parties.
“L/C Fee” has the meaning specified in Section 2.11(b)(ii).
“Management Stockholders” means (a) any Company Person who is an investor in Holdings or a Parent Entity, (b) family members of any of the individuals identified in the foregoing clause (a), (c) trusts, partnerships or limited liability companies for the benefit of any of the individuals identified in the foregoing clause (a) or (b), and (d) heirs, executors, estates, successors and legal representatives of the individuals identified in the foregoing clause (a) or (b).
“Margin Stock” has the meaning set forth in Regulation U of the Board of Governors of the United States Federal Reserve System, or any successor thereto.
“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of Equity Interests of the Issuer (or any successor of the Issuer) or any Parent Entity on the date of the declaration or making of the relevant Restricted Payment multiplied by (ii) the arithmetic mean of the closing prices per share of such Equity Interests for the 30 consecutive trading days immediately preceding the date of declaration or making of such Restricted Payment.
“Master Agreement” has the meaning specified in the definition of “Hedge Agreement.”
“Material Adverse Effect” means any event, circumstance or condition that has had a materially adverse effect on (a) the business, operations, assets, liabilities (actual or contingent) or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, and (b) the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under the Loan Documents.
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“Material Domestic Subsidiary” means, as of the Closing Date and thereafter at any date of determination, each of the Borrower’s Domestic Subsidiaries (a) whose total assets at the last day of the most recent Test Period (when taken together with the total assets of the Restricted Subsidiaries of such Domestic Subsidiary at the last day of the most recent Test Period) were equal to or greater than 5.0% of the consolidated total assets of the Borrower and the Restricted Subsidiaries as of the last day of such Test Period, in each case determined in accordance with GAAP or (b) whose revenues for such Test Period (when taken together with the revenues of the Restricted Subsidiaries of such Domestic Subsidiary for such Test Period) were equal to or greater than 5.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the date which is 30 days after the Closing Date (or such longer period as the Administrative Agent may agree in its sole discretion), Domestic Subsidiaries that are not Guarantors solely because they do not meet the thresholds set forth in clause (a) or (b) comprise in the aggregate more than (when taken together with the total assets of the Restricted Subsidiaries of such Domestic Subsidiaries at the last day of the most recent Test Period) 10.0% of the total consolidated assets of the Borrower and the Restricted Subsidiaries that are Domestic Subsidiaries as of the end of the most recently ended Test Period or more than (when taken together with the revenues of the Restricted Subsidiaries of such Domestic Subsidiaries for such Test Period) 10.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries that are Domestic Subsidiaries for such Test Period (or, in each case, on any date when re-designated as an Excluded Subsidiary pursuant to the definition of “Excluded Subsidiary”), then the Borrower shall, not later than sixty days after the date by which financial statements for such Test Period were required to be delivered pursuant to this Agreement or on the date of such redesignation, as applicable (or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Domestic Subsidiaries as “Material Domestic Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) comply with the provisions of Section 6.11 with respect to any such Subsidiaries.
“Material Foreign Subsidiary” means, as of the Closing Date and thereafter at any date of determination, each of the Borrower’s Foreign Subsidiaries (a) whose total assets at the last day of the most recent Test Period (when taken together with the total assets of the Restricted Subsidiaries of such Foreign Subsidiary at the last day of the most recent Test Period) were equal to or greater than 5.0% of the consolidated total assets of the Borrower and the Restricted Subsidiaries as of the last day of such Test Period, in each case determined in accordance with GAAP or (b) whose revenues for such Test Period (when taken together with the revenues of the Restricted Subsidiaries of such Foreign Subsidiary for such Test Period) were equal to or greater than 5.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the date which is 30 days after the Closing Date (or such longer period as the Administrative Agent may agree in its sole discretion), Foreign Subsidiaries that are not Material Foreign Subsidiaries comprise in the aggregate more than (when taken together with the total assets of the Restricted Subsidiaries of such Foreign Subsidiaries at the last day of the most recent Test Period) 10.0% of the total consolidated assets of the Borrower and the Restricted Subsidiaries that are Foreign Subsidiaries as of the end of the most recently ended Test Period or more than (when taken together with the revenues of the Restricted Subsidiaries of such Foreign Subsidiaries for such Test Period) 10.0% of the consolidated revenues of the Borrower and the Restricted Subsidiaries that are Foreign Subsidiaries for such Test Period (or, in each case, on any date when re-designated as an Excluded Subsidiary pursuant to the definition of “Excluded Subsidiary”), then the Borrower shall, not later than sixty days after the date by which financial statements for such Test Period were required to be delivered pursuant to this Agreement or on the date of such re-designation (or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion), designate in writing to the Administrative Agent one or more of such Foreign Subsidiaries as “Material Foreign Subsidiaries” to the extent required such that the foregoing condition ceases to be true.
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“Material Indebtedness” means, as of any date, Indebtedness for borrowed money on such date of any Loan Party in an aggregate principal amount exceeding the Threshold Amount; provided that in no event shall any of the following be Material Indebtedness (a) Indebtedness under a Loan Document, (b) obligations in respect of a Qualified Securitization Financing, (c) Capitalized Lease Obligations, (d) Indebtedness held by a Loan Party or any Indebtedness held by an Affiliate of a Loan Party and (e) Indebtedness under Hedge Agreements.
“Material Subsidiary” means any Material Domestic Subsidiary or any Material Foreign Subsidiary.
“Materiality Threshold Amount” means an amount equal to the greater of 5.00% of Closing Date EBITDA and 5.00% of TTM Consolidated Adjusted EBITDA.
“Maturing Indebtedness Reserve”
means, as of any date of determination, with respect (x) to any
installment(s) of principal of Indebtedness described in the definition of “Inside Maturity Exception” (as defined in the
Term Loan Credit Agreement as in effect on the date hereofClosing
Date) which has a scheduled date of payment or scheduled maturity date that is due to occur less than 91 days after such date,
a reserve equal to the outstanding principal amount of such installment(s) that are so
due and (y) any Indebtedness under the Term Loan Credit Agreement (or any refinancing Indebtedness in respect thereof) which has a scheduled
maturity date that is due to occur less than 91 days after such date, a reserve equal to the outstanding principal amount of such Indebtedness
that is so due. For the avoidance of doubt, a Maturing Indebtedness Reserve shall not be established with respect to any principal
installment of Indebtedness prior to the 91st day preceding the scheduled date of payment or a scheduled maturity date of such installment.
“Maturity Date” means:
(a) (a) with
respect to the Revolving Loans, the date that is the earlier of (i) five years after the ClosingAmendment
No. 2 Effective Date and (ii) the date such Revolving Loans are declared due and payable pursuant to Section 9.02,
and
(b) (b) with
respect to any tranche of Extended Revolving Commitments, the earlier of (i) the final maturity date as specified in the applicable
Extension Amendment and (ii) the date such tranche of Extended Revolving Commitments are terminated and/or declared due and payable
pursuant to Section 9.02.
provided, in each case, that if such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately preceding such day.
“Maximum Rate” has the meaning specified in Section 11.10.
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the Issuing Banks with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of the Swing Line Lender with respect to Swing Line Loans outstanding at such time and (c) otherwise, an amount determined by the Administrative Agent and the Issuing Banks or the Swing Line Lender, as the case may be, in their sole discretion.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which any Loan Party or any of their respective ERISA Affiliates makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions, which for greater certainty shall not include a Canadian Pension Plan.
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“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP (determined, for the avoidance of doubt, on an unconsolidated basis) and before any reduction in respect of preferred stock dividends.
“Non-Bank Certificate” has the meaning specified in Section 3.01(b).
“Non-Consenting Lender” has the meaning specified in Section 3.07.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Financed Capital Expenditures” means Consolidated Capital Expenditures that (a) are not financed with the proceeds of any Indebtedness (it being understood and agreed that, to the extent financed with Loans, such Consolidated Capital Expenditures shall be deemed Non-Financed Capital Expenditures), the proceeds of any sale or issuance of Equity Interests of, or equity contributions to, Holdings or the Borrower, the proceeds of any Disposition (including any substantially contemporaneous trade-in of assets) or any Casualty Event and (b) are not reimbursed by a third person (excluding any Loan Party or any of its Restricted Subsidiaries).
“Non-Loan Party” means any Restricted Subsidiary of the Borrower that is not a Loan Party.
“Nonrenewal Notice Date” has the meaning specified in Section 2.04(b)(iii).
“Non-SOFR Successor Rate” has the meaning specified in Section 3.03(c).
“Not Otherwise Applied” means, with reference to the amount of any Permitted Equity Issuances that is proposed to be applied to a particular use or transaction, that such amount was not previously applied in determining the permissibility of a transaction under the Loan Documents (including, for the avoidance of doubt, any use of such amount to fund a Specified Equity Contribution or to incur Contribution Indebtedness) where such permissibility was (or may have been) contingent on the receipt or availability of such amount, it being agreed that the incurrence of secured debt shall be deemed one use transaction for purposes of this definition.
“Note” means each of the Revolving Loan Notes and the Swing Line Note.
“Notice of Intent to Cure” has the meaning specified in Section 6.02(a).
“Obligations” means all (a) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit (including in respect of any Revolving Exposure relating thereto), 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, fees and expenses that accrue after the commencement by or against any Loan Party of any case or proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and expenses are allowed or allowable claims in such case or proceeding, (b) obligations of any Loan Party arising under any Secured Hedge Agreement and (c) Cash Management Obligations; provided that “Obligations” of any Guarantor shall exclude any Excluded Swap Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and any of their Subsidiaries to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party and to provide Cash Collateral under any Loan Document.
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“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.
“OID” means original issue discount.
“Organization Documents” means,
(a) (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) (b) with
respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and
(c) (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable
agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable,
any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” has the meaning specified in Section 3.01(f).
“Other
Rate Early Opt-in” means the Administrative Agent and the Borrower have elected to replace ICE LIBOR with a Benchmark
Replacement other than a SOFR-based rate pursuant to (1) an Early Opt-in Election and (2) Section 3.03(b)(ii)
and paragraph (2) of the definition of “Benchmark Replacement”.
“Overadvance” shall mean a Loan or issuance of a Letter of Credit to the extent that, immediately after the making of such Loan or issuance, the aggregate amount of Credit Extensions then outstanding would exceed the Line Cap.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent in accordance with bank industry rules on interbank compensation and (b) with respect to any amount denominated in any Alternative Currency, the rate of interest per annum reasonably determined by the Administrative Agent to be its cost of funding such amount.
“Parent Entity” has the meaning specified in Section 6.01.
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“Pari Passu Lien Debt” means any Indebtedness that is intended by the Borrower to be secured by Liens on all or any portion of the Collateral that are pari passu in priority with the Liens on Collateral that secure the Term Loan Obligations. For the avoidance of doubt, “Pari Passu Lien Debt” includes the Initial Term Loans and the Senior Secured Notes as of the Closing Date.
“Participant” has the meaning specified in Section 11.07(d).
“Participant Register” has the meaning specified in Section 11.07(e).
“Participating Member State” means each state as described in any EMU Legislation.
“Participation” has the meaning specified in Section 11.07(d).
“Payment Conditions” means with respect to any transaction (i) no Event of Default has occurred and is continuing or would arise after giving effect to such transaction and (ii) either (a) the Fixed Charge Coverage Ratio would be at least 1.00:1.00 on a Pro Forma Basis and the Borrower would have Excess Availability of at least the greater of (x) $31,250,000 and (y) 12.5% of the Line Cap (but with respect to Restricted Payments only, $37,500,000 and 15.0%, respectively) on a Pro Forma Basis immediately after giving effect to such transaction and over the 20 consecutive calendar days immediately prior to such transaction, or (b) the Borrower would have Excess Availability on a Pro Forma Basis of at least the greater of (x) $43,750,000 and (y) 17.5% of the Line Cap (but with respect to Restricted Payments only, $50,000,000 and 20.0%) on a Pro Forma Basis immediately after giving effect to such transaction and over the 20 consecutive calendar days immediately prior to such transaction.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“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 any Loan Party or any of their respective ERISA Affiliates or to which any Loan Party or any of their respective ERISA Affiliates 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 or has had an obligation to make contributions at any time in the preceding five plan years, but shall not include a Canadian Pension Plan.
“Permitted Acquisition” means an Acquisition Transaction together with other Investments undertaken to consummate such Acquisition Transaction; provided that:
(a) (a) after
giving Pro Forma Effect to any such Acquisition Transaction or Investment, at the applicable time determined in accordance with Section 1.08(f),
no Event of Default shall have occurred and be continuing;
(b) (b) the
business of such Person, or such assets, as the case may be, constitute a business permitted by the Loan Documents; and
(c) (c) with
respect to each such purchase or other acquisition, all actions required to be taken with respect to any such newly created or acquired
Subsidiary (including each Subsidiary thereof that constitutes a Restricted Subsidiary) or assets in order to satisfy the requirements
set forth in Section 6.11 to the extent applicable shall have been taken (or shall be taken), to the extent required by such
section (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made) (unless
such newly created or acquired Subsidiary constitutes an Excluded Subsidiary or is designated as an Unrestricted Subsidiary);
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provided further that Permitted Acquisitions of any Person that on the date of such Permitted Acquisition is not a Loan Party (and will not become a Loan Party as a result of such Permitted Acquisitions within the time periods set forth in Section 6.11) shall not exceed the greater of (1) $300,000,000 and (2) 60% of TTM Consolidated Adjusted EBITDA;
“Permitted Discretion” means
reasonable credit judgment in accordance with customary business practices for comparable asset-based lending transactions; provided
that, as it relates to the establishment of new categories of Reserves after the Closing Date (other than Reserves that are expressly
included in the definition of “Reserves” or the adjustment or imposition of exclusionary criteria in the definition of “Eligible
Accounts Receivable”), Permitted Discretion will require that (a) such establishment, adjustment or imposition of Reserves after
the Closing Date be based on the analysis of facts or events first occurring or first discovered by the Administrative Agent after the
Closing Date or that are materially different from facts or events known to the Administrative Agent on the Closing Date, (b) the amount
of any such Reserve so established or the effect of any adjustment or imposition of exclusionary criteria in the definition of “Eligible
Accounts Receivable” be a reasonable quantification of changes in the ability of the Administrative Agent to realize upon the ABL
Priority Collateral included in the Borrowing Base and (c) no Reserves or changes to eligibility criteria will be duplicative of Reserves
or changes already accounted for through eligibility criteria in the definition of “Eligible Accounts Receivable” or through
the advance rates set forth in the definitions of “Accounts Receivable Component”.”
“Permitted Equity Issuance” means any,
(a) (a) public
or private sale or issuance of any Qualified Equity Interests of the Borrower or any Parent Entity (other than a Specified Equity Contribution);
(b) (b) contribution
to the equity capital of the Borrower or any other Loan Party (other than (i) a Specified Equity Contribution or (ii) in exchange for
Disqualified Equity Interests); or
(c) (c) sale
or issuance of Indebtedness of Holdings, the Borrower or a Restricted Subsidiary (other than intercompany Indebtedness) that have been
converted into or exchanged for Qualified Equity Interests of Holdings, the Borrower, a Restricted Subsidiary or any Parent Entity;
provided that the amount of any Permitted Equity Issuance will be the amount of cash and Cash Equivalents received by a Loan Party or Restricted Subsidiary in connection with such sale, issuances or contribution, and the fair market value of any other property received in connection with such sale, issuance or contribution, (measured at the time made), without adjustment for subsequent changes in the value.
“Permitted Holders” means any:
(a) (a) the
Sponsors;
(b) (b) the
Management Stockholders;
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(c)
(c) any group (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act) of which the Persons described in clauses (a) or (b) above are members; provided that,
without giving effect to the existence of such group or any other group, the Persons described in clauses (a) and (b) above, collectively,
beneficially own (as defined in Rules 13(d) and 14(d) of the Exchange Act) Equity Interests representing at least a majority of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interest of Holdings (or any Successor Holdings, if applicable)
then held by such group); and
(d) (d) any
Parent Entity, for so long as a majority of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests
of such Parent Entity is beneficially owned (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
by one or more Permitted Holders described in clauses (a), (b) and/or (c) of the definition thereof.
“Permitted Investment” means (a) any Permitted Acquisition, (b) any Acquisition Transaction and/or (c) any other Investment or acquisition permitted hereunder.
“Permitted Investors” means (a) a Sponsor, (b) each of the Affiliates and investment managers of a Sponsor, (c) any fund or account managed by any of the persons described in clause (a) or (b) of this definition, (d) any employee benefit plan of Holdings or any of its subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and (e) investment vehicles of members of management of Holdings or the Borrower, Holdings, the Borrower and their respective Subsidiaries.
“Permitted Junior Secured Refinancing Debt” means any Credit Agreement Refinancing Indebtedness that is Junior Lien Debt.
“Permitted Lien” means any Lien not prohibited by Section 7.01.
“Permitted Pari Passu Secured Refinancing Debt” means any Credit Agreement Refinancing Indebtedness that is Pari Passu Lien Debt.
“Permitted Ratio Debt” means Indebtedness; provided that, at the time of incurrence thereof:
(a) (a) immediately
after giving effect to the issuance, incurrence, or assumption of such Indebtedness:
(i) (i) in
the case of any Pari Passu Lien Debt, the First Lien Net Leverage Ratio for the applicable Test Period is equal to or less than the Closing
Date First Lien Net Leverage Ratio;
(ii) (ii) in
the case of any Junior Lien Debt, the Secured Net Leverage Ratio for the applicable Test Period is equal to or less than the Closing Date
Secured Net Leverage Ratio; and
(iii) (iii) in
the case of any Indebtedness that is not secured by a Lien on any Collateral, either:
(i) (i) the
Total Net Leverage Ratio for the applicable Test Period is equal to or less than the Closing Date Total Net Leverage Ratio, or
(ii) (ii) the
Interest Coverage Ratio for the applicable Test Period is equal to or greater than 2.00 to 1.00;
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in each case, after giving Pro Forma Effect to the incurrence of such Indebtedness and any use of proceeds thereof and measured as of and for the Test Period immediately preceding the issuance, incurrence or assumption of such Indebtedness for which internal financial statements are available; provided, that the aggregate principal amount of Permitted Ratio Debt incurred by Non-Loan Parties, together with the aggregate principal amount of Incremental Equivalent Debt incurred by Non-Loan Parties, shall not exceed, in the aggregate, the greater of (i) 50.00% of Closing Date EBITDA and (ii) 50.00% of TTM Consolidated Adjusted EBITDA as of the applicable date of determination;
(b) (b) to
the extent such Permitted Ratio Debt is required to be subject to the provisions of the Closing Date ABL Intercreditor Agreement, a Debt
Representative acting on behalf of the holders of such Indebtedness has become party to, or is otherwise subject to the provisions of
the Closing Date ABL Intercreditor Agreement or any other intercreditor agreement that may be executed from time to time and reasonably
acceptable to the Administrative Agent;
(c) (c) if
such Indebtedness is intended to be Pari Passu Lien Debt or Junior Lien Debt, a Debt Representative acting on behalf of the holders of
such Permitted Ratio Debt has become party to, or is otherwise subject to intercreditor arrangements set forth in the penultimate paragraph
of Section 7.01; and
(d) (d) Permitted
Ratio Debt (i) that is Pari Passu Lien Debt shall not mature prior to the latest maturity date of, and shall not have a Weighted Life
to Maturity shorter than the remaining Weighted Average Life to Maturity of, the Initial Term Loans (without giving effect to any amortization
payments or prepayments on the Initial Term Loans actually made) or (ii) that is Junior Lien Debt or unsecured Indebtedness shall not
mature, or have scheduled amortization, prior to the latest maturity date of the Initial Term Loans; provided that this clause
(d) shall not apply to the incurrence of any such Indebtedness pursuant to the Inside Maturity Exception (as defined in the Term Loan
Credit Agreement as in effect on the date hereofClosing
Date).
Permitted Ratio Debt will be deemed to include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, replacement, renewal or extension of any Indebtedness of such Person; provided that
(a) (a) the
principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of
the Indebtedness so modified, refinanced, refunded, replaced, renewed or extended except by an amount equal to unpaid accrued interest
and premium (including tender premiums) thereon, plus OID and upfront fees plus other fees and expenses reasonably
incurred, in connection with such modification, refinancing, refunding, replacement, renewal or extension and by an amount equal to any
existing commitments unutilized thereunder,
(b) (b) other
than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(c) or Section 7.03(d),
such modification, refinancing, refunding, replacement, renewal or extension has a final maturity date equal to or later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity
of, the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended,
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(c) (c) such
Indebtedness shall not be incurred or guaranteed by any Loan Party or Restricted Subsidiary other than a Loan Party or Restricted Subsidiary
that was an obligor of the Indebtedness being exchanged, extended, renewed, replaced or refinanced and no additional Loan Parties or Restricted
Subsidiaries shall become liable for such Indebtedness;
(d) (d) if
such Indebtedness being modified, refinanced, refunded, replaced, renewed, or extended is Junior Financing or Junior Lien Debt,
(i) (i) to
the extent such Indebtedness being modified, refinanced, refunded, replaced, renewed, or extended is subordinated in right of payment
to the Obligations, such modification, refinancing, refunding, replacement, renewal, or extension is subordinated in right of payment
to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being
modified, refinanced, refunded, replaced, renewed or extended,
(ii) (ii) to
the extent such Indebtedness being modified, refinanced, refunded, replaced, renewed, or extended is unsecured, such modification, refinancing,
refunding, replacement, renewal or extension is either (A) unsecured or (B) secured only by Permitted Liens (provided that such
incurrence will thereafter count in the calculation of any remaining basket capacity thereunder, while such Indebtedness remains outstanding);
and
(iii) (iii) to
the extent such Indebtedness being modified, refinanced, refunded, replaced, renewed, or extended is secured by Liens, (A) such modification,
refinancing, refunding, replacement, renewal or extension is either (1) unsecured or (2) secured only by Permitted Liens, provided
that if such Indebtedness is Pari Passu Lien Debt or Junior Lien Debt, (x) to the extent such Indebtedness being modified, refinanced,
refunded, replaced, renewed, or extended is required to be subject to the provisions of the Closing Date ABL Intercreditor Agreement,
a Debt Representative acting on behalf of the holders of such Indebtedness has become party to, or is otherwise subject to the provisions
of the Closing Date ABL Intercreditor Agreement or any other intercreditor agreement that may be executed from time to time and reasonably
acceptable to the Administrative Agent and (y) (y) such Indebtedness shall not be secured on a pari passu basis by the ABL Priority Collateral
and (B) to the extent that such Liens are subordinated to the Liens securing the Obligations, such modification, refinancing, refunding,
replacement, renewal or extension is secured by Liens that are subordinated to the Liens securing the Obligations on terms at least as
favorable to the Lenders as those contained in the documentation (including any intercreditor or similar agreements) governing the Indebtedness
being modified, refinanced, replaced, refunded, replaced, renewed or extended;
(e) (e) if
such Indebtedness is secured by assets of the Borrower or any Restricted Subsidiary:
(i) (i)
such Indebtedness shall not be secured by Liens on any assets of the Borrower or any Restricted Subsidiary that are not also subject to,
or would be required to be subject to pursuant to the Loan Documents, a Lien securing the Obligations (except (1) Liens on property or
assets applicable only to periods after the Latest Maturity Date at the time of incurrence, (2) any Liens on property or assets to the
extent that a Lien on such property or asset is also added for the benefit of the Lenders, and (3) any Liens on property or assets under
the Indebtedness being exchanged, extended, renewed, replaced or refinanced and (4) with respect to Indebtedness of Non-Loan Parties,
Liens on assets of any Non-Loan Party); and
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(ii) (ii) if
such Indebtedness is Pari Passu Lien Debt or Junior Lien Debt, (x) a Debt Representative acting on behalf of the holders of such Indebtedness
has become party to, or is otherwise subject to the provisions of the Closing Date ABL Intercreditor Agreement or any other intercreditor
agreement that may be executed from time to time and reasonably acceptable to the Administrative Agent and (y) such Indebtedness shall
not be secured on a pari passu basis by the ABL Priority Collateral.
Permitted Refinancing will be deemed to include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Reorganization” means any transaction (a) undertaken to effect a corporate reorganization (or similar transaction or event) for operational or efficiency purposes or (b) related to tax planning or tax reorganization, in each case, as determined in good faith by the Borrower and entered into after the Closing Date; provided that, (i) no Event of Default is continuing immediately prior to such transaction and immediately after giving effect thereto and (ii) after giving effect to such transactions, the security interests of the Lenders in the Collateral (taken as a whole) and the Guarantees of the Obligations (taken as a whole), in each case, would not be materially impaired as a result thereof, and such transaction will not materially adversely affect the Borrower’s ability to make anticipated payments with respect to the Obligations as and when they become due (as determined in good faith by the Borrower).
“Person” means any natural person, corporation, limited liability company, unlimited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any material “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a Foreign Plan or Canadian Pension Plan, established or maintained by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any of their respective ERISA Affiliates.
“Platform” has the meaning specified in Section 6.02.
“Pledged Debt” has the meaning specified in the Security Agreement or the Canadian Security Agreement, as applicable.
“Pledged Equity” has the meaning specified in the Security Agreement or the Canadian Security Agreement, as applicable.
“Post-Acquisition Borrowing Base” has the meaning specified in the definition of “Eligible Accounts Receivable.”
“PPSA” means the Personal Property Security Act (Ontario) and the regulations thereunder, as from time to time in effect; or such other applicable legislation in effect from time to time in such other jurisdiction in Canada (including the Civil Code of Quebec) for purposes of the provisions hereof relating to perfection, effect of perfection or non-perfection or opposability or priority of a security interest in or Lien on any Collateral.
“Pre-Acquisition Borrowing Base” has the meaning specified in the definition of “Eligible Accounts Receivable.”
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“Prepayment Notice” means a written notice made pursuant to Section 2.07(a)(i) substantially in the form of Exhibit J.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).
“Private-Side Information” means any information with respect to Holdings and its Subsidiaries that is not Public-Side Information.
“Pro Forma Basis” and “Pro Forma Effect” mean, with respect to compliance with any test or covenant or calculation hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.08.
“Pro Rata Share” means with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Lender and any Letters of Credit issued or participations purchased therein by any Lender or any participation in any Swing Line Loans purchased by any Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Exposure of that Lender at such time and the denominator of which is the aggregate Revolving Exposure of all Lenders at such time.
“Protective Advance” has the meaning specified in Section 2.02(a).
“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 Company Costs” means costs relating to compliance with the Sarbanes-Oxley Act of 2002, as amended, and other expenses arising out of or incidental to Holdings’ status (or any relevant Parent Entity’s status) as a reporting company, including costs, fees and expenses (including legal, accounting and other professional fees) relating to compliance with provisions of the Securities Act and the Exchange Act, the rules of securities exchange companies with listed equity securities, directors’ compensation, fees and expense reimbursement, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees.
“Public Lenders” means Lenders that do not wish to receive Private-Side Information.
“Public-Side Information” means information that does not constitute material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to such Parent Entity or Holdings or any of their respective Subsidiaries or any of their respective securities.
“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).
“QFC Credit Support” has the meaning specified in Section 11.26(a).
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“Qualified Cash” means cash and Cash Equivalents of the Loan Parties in DDAs (including any DDA maintained with the Administrative Agent) that are subject to Blocked Account Agreements; provided that the Administrative Agent shall be entitled, pursuant to the terms thereof, to reasonably request cash reporting (i) on a daily basis with respect to any such accounts, (ii) with the delivery of a Borrowing Base Certificate, (iii) upon any request for a credit extension and (iv) in connection with any action incurred in reliance on the Payment Conditions.
“Qualified Cash Component” means 100% of Qualified Cash.
“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
“Qualified Holding Company Debt” means unsecured Indebtedness of Holdings:
(a) (a) that
is not subject to any Guarantee by any Loan Party (including the Borrower) or any Restricted Subsidiary;
(b) (b) that
will not mature prior to the date that is six months after the Latest Maturity Date in effect on the date of issuance or incurrence thereof;
(c) (c) that
has no scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, prepayment or
sinking fund obligation (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions
satisfying the requirements of clause (e) below);
(d) (d) that
does not require any payments in cash of interest or other amounts in respect of the principal thereof prior to the earlier to occur of
(i) the date that is four years from the date of the issuance or incurrence thereof and (ii) the date that is 180 days after the Latest
Maturity Date in effect on the date of such issuance or incurrence; and
(e) (e) that
has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for senior discount notes of an
issuer that is the parent of a borrower under senior secured credit facilities, in each case as determined by the Borrower in good faith;
provided that any such Indebtedness shall constitute Qualified Holding Company Debt only if immediately after giving effect to the issuance or incurrence thereof and the use of proceeds thereof, no Event of Default shall have occurred and be continuing.
“Qualified Professional Asset Manager” has the meaning specified in Section 10.16(a).
“Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions:
(a) (a) such
Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate
economically fair and reasonable to the Borrower and the Securitization Subsidiary, as determined by the Borrower in good faith;
(b) (b) all
sales, transfers and/or contributions of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market
value; and
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(c) (c) the
financing terms, covenants, termination events and other provisions thereof, including any Standard Securitization Undertakings, shall
be market terms, as determined by the Borrower in good faith; and
(d) (d) the
aggregate principal amount of all Securitization Financings that may be Qualified Securitization Financings shall not exceed $25,000,000
at any time.
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“Refunded Swing Line Loans” has the meaning specified in Section 2.03(c)(i).
“Refunding Equity Interests” has the meaning specified in Section 7.06(o).
“Register” has the meaning specified in Section 11.07(c).
“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Reimbursement Obligations” has the meaning specified in Section 2.04(c)(i).
“Related Indemnified Person” of an Indemnitee means (a) any controlling person or controlled affiliate of such Indemnitee, (b) the respective directors, officers, or employees of such Indemnitee or any of its controlling persons or controlled affiliates and (c) the respective agents of such Indemnitee or any of its controlling persons or controlled affiliates, in the case of this clause (c), acting at the instructions of such Indemnitee, controlling person or such controlled affiliate; provided that each reference to a controlled affiliate or controlling person in this definition shall pertain to a controlled affiliate or controlling person involved in the negotiation or syndication of the Facility.
“Release Actions” has the meaning specified in Section 10.11(b).
“Release Certificate” has the meaning specified in Section 10.11(b).
“Release Date” has the meaning specified in Section 10.11(c).
“Release/Subordination Event ” has the meaning specified in Section 10.11(a)(i)(G).
“Relevant Four Fiscal Quarter Period” means, with respect to any requested Specified Equity Contribution, the four-fiscal quarter period ending on (and including) the fiscal quarter in which Consolidated Adjusted EBITDA will be increased as a result of such Specified Equity Contribution.
“Relevant
Governmental Body” means the Federal Reserve Board and/or the Federal Reserve
Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the
Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar to this
Agreement.
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“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.
“Relevant Rate” means, with respect to any Credit Extension denominated in Dollars, SOFR, and, if such rate is replaced pursuant to Section 3.03, any replacement rate in respect thereof.
“Report” means reports prepared by the Administrative Agent or another Person showing the results of appraisals, field examinations or audits pertaining to the Loan Parties’ assets from information furnished by or on behalf of the Loan Parties, after the Administrative Agent has exercised its rights of inspection pursuant to Section 6.10(b), which Reports shall be distributed to the Lenders by the Administrative Agent, subject to the provisions of Section 11.08.
“Reportable Event” means, with respect to any Pension Plan, any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty day notice period has been waived.
“Required Facility Lenders” means, with respect to any Facility on any date of determination, Lenders having or holding more than 50% of the sum of (a) the aggregate principal amount of outstanding Loans under such Facility and (b) the aggregate unused Commitments under such Facility; provided that the portion of outstanding Loans and the unused Commitments of such Facility, as applicable, held or deemed held by a Defaulting Lender shall be excluded for purposes of making a determination of Required Facility Lenders.
“Required Lenders” means, as of any date of determination, Lenders having or holding more than 50% of the sum of the aggregate Revolving Exposure of all Lenders; provided that the aggregate Revolving Exposure of or held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Minimum Balances” has the meaning specified in Section 6.18(c).
“Rescindable Amount” has the meaning as specified in Section 2.14.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Reserved Secured Cash Management Obligations” means any Obligations in respect of any Secured Cash Management Services, up to the maximum amount owing thereunder as specified by the applicable Cash Management Bank in writing to Administrative Agent, which amount may be increased with respect to any existing Secured Cash Management Services by further written notice from such Cash Management Bank to Administrative Agent from time to time; provided that in each case (a) establishment of Bank Products Reserves for such amount and all other Reserved Secured Hedge Obligations and Reserved Secured Cash Management Obligations would not result in an Overadvance and (b) the Borrower has been notified of and given a least three Business Days to review any error in the calculation of such maximum amount and increased amount.
“Reserved Secured Hedge Obligations” means any Obligations in respect of any Hedge Agreement owing to a Hedge Bank, up to the maximum amount owing thereunder as specified by the applicable Hedge Bank in writing to Administrative Agent, which amount may be increased with respect to any existing Secured Hedge Agreement at any time by further written notice from such Hedge Bank to Administrative Agent; provided that the Borrower has been notified of and given a least three Business Days to review any error in the calculation of such maximum amount and increased amount.
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“Reserves” means the Bank Products Reserve, the Maturing Indebtedness Reserve, the Canadian Priority Payables Reserve and any and all other reserves established in accordance with and subject to Section 2.22 that reflect risks or contingencies that are reasonably likely to (a) affect the collectability of Eligible Accounts Receivable, (b) impair the value of the Eligible Accounts Receivable or the Collateral Agent’s Lien thereon or (c) result in the payment of unanticipated liabilities of any Loan Party. Without limiting the generality of the foregoing but subject to Section 2.22, the Administrative Agent may establish dilution reserves, reserves for unpaid and accrued sales taxes, reserves for banker’s liens, rights of setoff or similar rights and remedies as to deposit or investment accounts, reserves for contingent liabilities of any Loan Party, reserves for uninsured or underinsured losses or litigation of any Loan Party, reserves for customs charges, reserves for fees, assessments, and other governmental charges with respect to the Eligible Accounts Receivable, and reserves for self-insurance and insurance premiums.
“Responsible Officer” means the executive chairman, chief executive officer, president, senior vice president, senior vice president (finance), vice president, chief financial officer, treasurer, manager of treasury activities or assistant treasurer or other similar officer or Person performing similar functions of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent and, as to any document delivered on the Closing Date, any secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. Unless otherwise specified, all references herein to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.
“Restricted” means, when referring to cash or Cash Equivalents of the Borrower or any of the Restricted Subsidiaries, that such cash or Cash Equivalents appear (or would be required to appear) as “restricted” on a consolidated balance sheet of the Borrower or such Restricted Subsidiary (unless such appearance is related to a restriction in favor of the Administrative Agent or the Collateral Agent or any other Lender).
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any of the Restricted Subsidiaries (in each case, solely to a holder of Equity Interests in such Person’s capacity as a holder of such Equity Interests other than dividends or distributions payable solely in Equity Interests (other than Disqualified Equity Interests) of the Borrower), or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Persons thereof). For the avoidance of doubt, the payment of any Contractual Obligation that is based on, or measured with respect to the value of an Equity Interest, including any such Contractual Obligations constituting compensation arrangements, shall not be considered a Restricted Payment. The amount of any Restricted Payment not made in cash or Cash Equivalents shall be the fair market value of the securities or other property distributed by dividend or other otherwise.
“Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary.
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“Revolving Commitment” means
the commitment of a Lender to make or otherwise fund any Revolving Loan and to acquire participations in Letters of Credit and Swing Line
Loans hereunder and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s
Revolving Commitment, if any, is set forth on Schedule 2.01 under the caption “Revolving Commitment” or in the
applicable Assignment and Assumption, subject to any increase, adjustment or reduction pursuant to the terms and conditions hereof including
Section 2.16. The aggregate amount of the Revolving Commitments as of the ClosingAmendment
No. 2 Effective Date is $400,000,000500,000,000.
“Revolving Commitment Period” means the period from the Closing Date to but excluding the Revolving Commitment Termination Date.
“Revolving Commitment Termination Date”
means the earliest to occur of (a) the fifth anniversary of the ClosingAmendment
No. 2 Effective Date, (b) the date the Revolving Commitments, including Revolving Commitments in respect of Letters of
Credit and Swing Line Loans, are permanently reduced to zero pursuant to Section 2.08, and (c) the date of the termination
of the Revolving Commitments pursuant to Section 9.02.
“Revolving Exposure” means, with respect to any Lender as of any date of determination, (a) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (b) after the termination of the Revolving Commitments, the sum of (i) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (ii) in the case of each Issuing Bank, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in such Letters of Credit), (iii) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (iv) in the case of the Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any participations therein by other Lenders) and (v) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line Loans.
“Revolving Facility” means the Facility comprised of the Revolving Commitments, Revolving Loans, Swing Line Loans and Letters of Credit hereunder.
“Revolving Lender” means a Lender having a Revolving Commitment or other Revolving Exposure.
“Revolving Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Revolving Loans” has the meaning specified in Section 2.01(a).
“S&P” means Standard
& Poor’s, a division Financial
Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Sale Leaseback Transaction” means a sale leaseback transaction with respect to all or any portion of any real property, equipment or capital assets owned by a Loan Party or other property customarily included in such transactions.
“Same Day Funds” means disbursements and payments in immediately available funds.
“Sanctions” means any sanction administered or enforced by the United States government (including OFAC), the Government of Canada, the United Nations Security Council, the European Union or HMT.
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“Scheduled Unavailability Date” has the meaning specified in Section 3.03(c).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to, or exercising jurisdiction outside of the United States, any of its principal functions.
“Secured Cash Management Services” means any Cash Management Services entered into by and among the Borrower or any Restricted Subsidiary and any Cash Management Bank.
“Secured Hedge Agreement” means any Hedge Agreement that is entered into by and between any Loan Party and any Hedge Bank and designated in writing by the Hedge Bank and the Borrower to the Administrative Agent as a “Secured Hedge Agreement” (but only if such Hedge Agreement has not been designated as a “Secured Hedge Agreement” under the Term Loan Credit Agreement).
“Secured Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Secured Net Debt outstanding as of the last day of such Test Period to (b) Consolidated Adjusted EBITDA of the Borrower for such Test Period.
“Secured Obligations” has the meaning given to such term in the Security Agreement or the Canadian Security Agreement, as applicable.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, each Issuing Bank, each Hedge Bank party to a Secured Hedge Agreement, each Cash Management Bank party to an agreement governing Cash Management Obligations, the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 10.05 and Section 10.12.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Securitization Assets” means the accounts receivable, royalty or other revenue streams, other rights to payment (including with respect to rights of payment pursuant to the terms of Joint Ventures) subject to a Qualified Securitization Financing and the proceeds thereof.
“Securitization Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by the Borrower or any of its Subsidiaries pursuant to which the Borrower or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by the Borrower or any of its Subsidiaries) or (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest or Lien in, any Securitization Assets of the Borrower or any of its Subsidiaries, and any assets related thereto, including all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets as determined by the Borrower in good faith.
“Securitization Repurchase Obligation” means any obligation of a seller or transferor of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a Standard Securitization Undertaking, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
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“Securitization Subsidiary” means a wholly owned Subsidiary of the Borrower (or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which the Borrower or any Subsidiary of the Borrower makes an Investment and to which the Borrower or any Subsidiary of the Borrower transfers Securitization Assets and related assets) that engages in no activities other than in connection with the financing of Securitization Assets of the Borrower or its Subsidiaries, all proceeds thereof and all rights (contingent and other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower or such other Person (as provided below) as a Securitization Subsidiary, and
(a) (a) no
portion of the Indebtedness or any other obligation (contingent or otherwise) of which (i) is guaranteed by Holdings, the Borrower
or any other Subsidiary of the Borrower, other than another Securitization Subsidiary (excluding guarantees of obligations (other than
the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates
Holdings, the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, in any way other than pursuant
to Standard Securitization Undertakings or (iii) subjects any property or asset of Holdings, the Borrower or any other Subsidiary
of the Borrower, other than another Securitization Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings;
(b) (b) with
which none of Holdings, the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, has any material
contract, agreement, arrangement or understanding other than on terms which the Borrower reasonably believes to be no less favorable to
Holdings, the Borrower or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower;
and
(c) (c) to
which none of Holdings, the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, has any obligation
to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results;
it being agreed that a Securitization Asset consisting of an obligation of or to any Affiliate of a Loan Party (other than another Loan Party or Restricted Subsidiary, unless otherwise permitted by Section 7.05) shall not result non-compliance with any of the foregoing provisions.
“Security Agreement” means, collectively, the Security Agreement executed by the Loan Parties (other than the Canadian Loan Parties), substantially in the form of Exhibit F, together with each Security Agreement Supplement executed and delivered pursuant to Section 6.11.
“Security Agreement Supplement” has the meaning specified in the Security Agreement.
“Senior Secured Notes” means the notes due 2028 issued by the Borrower pursuant to the Senior Secured Notes Indenture.
“Senior Secured Notes Documents” means the Senior Secured Notes, the Senior Secured Notes Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the Senior Secured Notes.
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“Senior Secured Notes Indenture” means that certain Indenture, dated as of October 28, 2020, among the Borrower, as issuer, the guarantors party thereto and Wilmington Trust, National Association, as trustee (as amended, restated, supplemented, or otherwise modified from time to time) and any supplemental indenture or additional indenture to be entered into with respect to the Senior Secured Notes.
“Short Term Advances” has the meaning specified in the definition of “Indebtedness.”
“Similar Business” means any business, the majority of whose revenues are derived from (i) business or activities conducted by the Borrower and its Restricted Subsidiaries on the Closing Date, (ii) any business that is a natural outgrowth or reasonable extension, development or expansion of any such business or any business similar, reasonably related, incidental, complementary or ancillary to any of the foregoing or (iii) any business that in the Borrower’s good faith business judgment constitutes a reasonable diversification of businesses conducted by the Borrower and its Restricted Subsidiaries.
“SOFR” with
respect to any day means the secured overnight financing rate published for such daymeans
the Secured Overnight Financing Rate as administered 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) and, in each case, that has been selected or recommended by the Relevant
Governmental Body.
“SOFR
Early Opt-in” means the Administrative Agent and the Borrower have elected to replace ICE LIBOR pursuant to (1) an Early
Opt-in Election and (2) Section 3.03(b)(i) and paragraph (1) of the definition of “Benchmark
Replacement”.
“SOFR Adjustment” means 0.10% per annum.
“SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator of SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or other Person acting as the SOFR Administrator at such time that is satisfactory to the Administrative Agent.
“SOFR Scheduled Unavailability Date” has the meaning specified in Section 3.03(b).
“SOFR Successor Rate” has the meaning specified in Section 3.03(b).
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets of such Person, on a consolidated basis with its Subsidiaries, exceeds its debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis, (b) the present fair saleable value of the property of such Person, on a consolidated basis with its Subsidiaries, is greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such debts and other liabilities become absolute and matured, (c) such Person, on a consolidated basis with its Subsidiaries, is able to pay its debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such liabilities become absolute and matured and (d) such Person, on a consolidated basis with its Subsidiaries, is not engaged in, and is not about to engage in, business for which it has unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.
“SPAC” means Conyers Park II Acquisition Corp., a Delaware corporation.
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“SPC” has the meaning specified in Section 11.07(g).
“Specified ABL Event of Default” means an Event of Default pursuant to Section 9.01(a), Section 9.01(b)(i)(A), Section 9.01(b)(ii), Section 9.01(b)(iii), Section 9.01(d) (solely with respect to the representation and warranty made in Section 5.20) and Section 9.01(f).
“Specified DDA” means any DDA maintained with a Lender.
“Specified Equity Contribution” has the meaning specified in Section 8.02.
“Specified Event of Default” means an Event of Default pursuant to Section 9.01(a) or an Event of Default pursuant to Section 9.01(f) with respect to the Borrower.
“Specified Excess Availability” means the sum of (a) Excess Availability at such time plus (b) Suppressed Availability (which shall not be less than zero) at such time; provided that Suppressed Availability shall not exceed 2.5% of the Aggregate Commitments at any time.
“Specified Representations” means those representations and warranties made by Holdings and the Borrower in Sections 5.01(a) (with respect to organizational existence only), 5.01(b)(ii), 5.02(a), 5.02(b)(i), 5.04, 5.13, 5.16, 5.17 and 5.18.
“Specified Transaction” means any of the following identified by the Borrower: (a) transaction or series of related transactions, including Investments and Acquisition Transactions, that results in a Person becoming a Restricted Subsidiary, (b) any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, (c) any transaction or series of related transactions, including Dispositions, that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, (d) any acquisition or disposition of assets constituting a business unit, line of business or division of another Person or a facility, (e) any material acquisition or disposition, (f) any restructuring of the business of the Borrower, whether by merger, consolidation, amalgamation or otherwise, (g) any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (h) any Restricted Payment and (i) transactions of the type given pro forma effect in (i) the Sponsor Model or (ii) any quality of earnings report prepared by a nationally recognized accounting firm and furnished to the Administrative Agent in connection with the Transactions or an Acquisition Transaction or other Investment consummated after the Closing Date.
“Specified Transaction Adjustments” has the meaning specified in Section 1.08(c).
“Sponsor” means (a) any funds, limited partnerships or co-investment vehicles managed or advised by Leonard Green & Partners, L.P., CVC Advisors (U.S.) Inc. or Bain Capital, LP or any Affiliates of any of the foregoing Person(s) or any direct or indirect Subsidiaries of any of the foregoing Person(s) (or jointly managed by any such Person(s) or over which any such Person(s) exercise governance rights) and (b) any investors (including limited partners) in the Persons identified in clause (a) who are investors (including limited partners) in such Persons as of the Closing Date, and from time to time, invest directly or indirectly in Holdings or any Parent Entity (but, in each case, excluding any portfolio companies of any of the foregoing).
“Sponsor Model” means the Sponsor’s financial model used in connection with the syndication of the Facility and the Term Loan Facility.
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“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of the Borrower that are customary in a Securitization Financing.
“Stated Amount” means, with respect to any Letter of Credit at any time, the aggregate amount available to be drawn thereunder at such time (regardless of whether any conditions for drawing could then be met).
“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal established by the FRB to which the Administrative Agent
is subject with respect to the Adjusted Eurocurrency Rate, for Eurocurrency Rate funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the FRB). Such reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Rate Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit
of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, unlimited liability company or other entity of which (a) the Equity Interests having ordinary voting power (other than Equity Interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors of such corporation, partnership, limited liability company, unlimited liability company or other entity are at the time owned by such Person or (b) more than 50.0% of the Equity Interests are at the time owned by such Person. Unless otherwise indicated in this Agreement, all references to Subsidiaries will mean Subsidiaries of the Borrower. No Person shall be considered a Subsidiary of the Borrower unless the Borrower has the ability to Control such Subsidiary.
“Subsidiary Guarantor” or “Subsidiary Loan Party” means any Subsidiary (other than an Excluded Subsidiary) that is required to be a Guarantor pursuant to the terms of the Loan Documents.
“Successor Borrower” has the meaning specified in Section 7.04(e).
“Successor Holdings” means any successor to Holdings pursuant to Section 7.04(a)(iii), Section 7.04(g)(i) or Section 7.10(b)(ii), as applicable, together with such Person’s subsequent successors and assigns permitted hereunder.
“Successor Rate” has the meaning specified in Section 3.03(c).
“Super Majority Lenders” means, as of any date of determination, Lenders having or holding more than 66-2/3% of the aggregate Revolving Exposure of all Lenders; provided that the aggregate Revolving Exposure of or held by any Defaulting Lender or Disqualified Lender shall be excluded for purposes of making a determination of Super Majority Lenders at any time.
“Supplemental Administrative Agent” and “Supplemental Administrative Agents” have the meanings specified in Section 10.12(a).
“Supported QFC” has the meaning specified in Section 11.26(a).
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“Suppressed Availability” means, the amount, if positive, by which the Borrowing Base exceeds the Aggregate Commitments.
“Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements 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 Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).
“Swing Line Lender” means each of (i) Bank of America, N.A., in its capacity as the Swing Line Lender hereunder in respect of Swing Line Loans denominated in Dollars, and (ii) Bank of America, N.A. (acting through its Canada branch), in its capacity as the Swing Line Lender hereunder in respect of Swing Line Loans denominated in Canadian Dollars, in each case, together with its permitted successors and assigns in such capacity.
“Swing Line Loan” means the swing line loan made by the Swing Line Lender to the Borrower pursuant to Section 2.03.
“Swing Line Loan Request” means a Swing Line Loan Request substantially in the form of Exhibit A-4, or such other form as 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 Borrower.
“Swing Line Note” means a promissory note in the form of Exhibit B-2, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Swing Line Sublimit” means the greater of (a) $40,000,000 and (b) such higher amount as the Borrower and the Administrative Agent may from time to time agree.
“Taxes” has the meaning specified in Section 3.01(a).
“Term Loan” has the meaning
assigned to such term in the Term Loan Credit Agreement (as in effect on the date hereofClosing
Date).
“Term Loan Agent” means Bank of America, N.A., in its capacity as administrative agent and collateral agent in respect of the Term Loan Credit Agreement, together with its successors and assigns in such capacity.
“Term Loan Credit Agreement” means the (i) term loan credit agreement, to be entered into as of the Closing Date, among Holdings, the Borrower, the lenders party thereto and the Term Loan Agent, as such document may be amended, restated, supplemented or otherwise modified from time to time (ii) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to refinance (subject to the limitations set forth herein (including by reference to the Closing Date ABL Intercreditor Agreement)) in whole or in part the Indebtedness and other obligations outstanding under (x) the credit agreement referred to in clause (i) or (y) any subsequent Term Loan Credit Agreement, unless such agreement or instrument expressly provides that it is not intended to be and is not a Term Loan Credit Agreement hereunder. Any reference to the Term Loan Credit Agreement hereunder shall be deemed a reference to any Term Loan Credit Agreement then in existence.
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“Term Loan Documents” means the Term Loan Credit Agreement and the other “Loan Documents” as defined in the Term Loan Credit Agreement, as each such document may be amended, restated, supplemented or otherwise modified.
“Term Loan Facility” means
any “Facility” as defined in the Term Loan Credit Agreement (as in effect on the date hereofClosing
Date).
“Term Loan Obligations” means
the “Obligations” as defined in the Term Loan Credit Agreement (as in effect on the date
hereofClosing Date).
“Term Priority Collateral” means the “Fixed Asset Collateral” as defined in the Closing Date ABL Intercreditor Agreement.
“Term SOFR” means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. (New York City time) on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one month commencing that day;
provided that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Screen
Rate” means the forward-looking SOFR term rate
for any period that is approximately (as determined byadministered
by CME (or any successor administrator satisfactory to the Administrative Agent) as long as
any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has
been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected and
published on the applicable Reuters screen page (or such other
commercially available source providing such quotations as may be
designated by the Administrative Agent from time to time in its reasonable discretion).
“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.
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“Termination Conditions” means, collectively, (a) the payment in full in cash of the Obligations (other than (i) contingent indemnification obligations as to which no claim has been asserted, (ii) Obligations under Secured Hedge Agreements as to which alternative arrangements acceptable to the Hedge Bank thereunder have been made and (iii) Cash Management Obligations) and (b) the termination of the Commitments and the termination or expiration of all Letters of Credit under this Agreement (unless backstopped or Cash Collateralized in an amount equal to 103% of the maximum drawable amount of any such Letter of Credit or otherwise in an amount and/or in a manner reasonably acceptable to the Issuing Banks).
“Test Period” in effect at any time means the most recent period of four consecutive fiscal quarters of the Borrower ended on or prior to such time (taken as one accounting period) in respect of which financial statements for each quarter or fiscal year in such period are available (which may be internal financial statements except to the extent this Agreement otherwise expressly states that the Test Period is specified in a Compliance Certificate, in which case such financial statements shall have been delivered pursuant to Section 6.01(a) or (b) for the Test Period set forth in such Compliance Certificate). A Test Period may be designated by reference to the last day thereof (i.e., the ‘December 31st Test Period’ of a particular year refers to the period of four consecutive fiscal quarters of the Borrower ended on December 31st of such year), and a Test Period shall be deemed to end on the last day thereof.
“Threshold Amount” means the greater of (a) 25% of Closing Date EBITDA and (b) 25% of TTM Consolidated Adjusted EBITDA.
“Total Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Net Debt as of the last day of such Test Period to (b) Consolidated Adjusted EBITDA of the Borrower for such Test Period.
“Total Utilization of Revolving Commitments” means, as of any date of determination, the sum of (i) the aggregate principal amount of all outstanding Revolving Loans other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing the Issuing Banks for any amount drawn under any Letter of Credit, but not yet so applied, (ii) the aggregate principal amount of all outstanding Swing Line Loans and (iii) the Letter of Credit Usage.
“Transaction Expenses” means any fees or expenses incurred or paid by Holdings or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby, including any amortization thereof in any period, including any amortization thereof in any period.
“Transactions” means, collectively, the funding of the initial Term Loans under the Term Loan Credit Facility, the issuance of notes under the Senior Secured Notes Indenture, the receipt of the Revolving Commitments and funding of the Initial Revolving Borrowing, the Closing Date Refinancing, the Equity Contribution, the consummation of the Acquisition, including all payments to the holders of the Equity Interests of the Acquired Business in connection therewith, and the payment of the Transaction Expenses.
“Treasury Equity Interests” has the meaning specified in Section 7.06(o).
“Trust Fund Account” means any account containing cash consisting solely of Trust Funds.
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“Trust Fund Certificate” means a certificate of a Responsible Officer of the Borrower certifying (a) the type and amount of any Trust Funds (other than payroll and employee benefit payments, in each case, in the nature of discretionary contributions) contained or held in a Blocked Account, (b) that the failure to remit such Trust Funds to the Person entitled thereto could reasonably be expected to result in personal, criminal or civil liability to any director, officer or employee of any Loan Party or any Subsidiary of any Loan Party under any applicable Law and (c) that (x) the obligation requiring such Trust Funds is due and payable within 10 Business Days of delivery of such certificate and (y) amounts on deposit in any applicable Trust Fund Account are insufficient to make such payment.
“Trust Funds” means any cash or Cash Equivalents or other investment property comprised of (a) funds used or to be used for payroll and payroll taxes and other employee benefit payments to or for the benefit of any Loan Party’s employees, (b) funds used or to be used to pay all Taxes required to be collected, remitted or withheld (including, without limitation, federal, state, provincial and other withholding Taxes (including the employer’s share thereof)) and (c) any other funds which any Loan Party (i) holds on behalf of another Person (other than Holdings or any of its Subsidiaries) or (ii) holds as an escrow or fiduciary for another Person (other than Holdings or any of its Subsidiaries).
“TTM Consolidated Adjusted EBITDA” means, as of any date of determination, the Consolidated Adjusted EBITDA of the Borrower and the Restricted Subsidiaries, determined on a Pro Forma Basis, for the most recent Test Period.
“Type” means, with respect
to a Loan, its character as a Base Rate Loan or Eurocurrency,
a Term SOFR Loan, an Alternative Currency Term Rate Loan, an Alternative Currency Loan or an Alternative Currency Daily 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 subject to 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.
“Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent entity, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent entity is subject to home jurisdiction supervision, if applicable Law requires that such appointment not be disclosed.
“Unfunded Advances/Participations” means (a) with respect to the Administrative Agent, the aggregate amount, if any (i) made available to the Borrower on the assumption that each Lender has made available to the Administrative Agent such Lender’s share of the applicable Borrowing available to the Administrative Agent as contemplated by Sections 2.01(b)(ii) and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Administrative Agent by the Borrower or made available to the Administrative Agent by any such Lender, (b) with respect to the Swing Line Lender, the aggregate amount, if any, of outstanding Swing Line Loans in respect of which any Revolving 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 Section 2.03(c) and (c) with respect to the Issuing Banks, the aggregate amount, if any, of amounts drawn under Letters of Credit in respect of which a Revolving Lender shall have failed to make amounts available to the applicable Issuing Banks pursuant to Section 2.04(c).
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“Uniform Commercial Code” means the Uniform Commercial Code or any successor provision thereof as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code or any successor provision thereof (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“United States” and “U.S.” mean the United States of America.
“Unrestricted Subsidiary”
means (a) each Securitization Subsidiary and (b) any Subsidiary of the Borrower designated by the Board of Directors of the Borrower as
an Unrestricted Subsidiary pursuant to Section 6.13 subsequent to the date hereofClosing
Date and each Subsidiary of such Subsidiary, in each case, until such Person ceases to be an Unrestricted Subsidiary of the
Borrower in accordance with Section 6.13 or ceases to be a Subsidiary of the Borrower.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Lender” has the meaning specified in Section 3.01(e).
“
“U.S. Special Resolution Regimes” has the meaning specified in Section 10.26(a).
“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Public Law No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(a) (a) the
sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such payment, by
(b) (b) the
then outstanding principal amount of such Indebtedness;
provided that for purposes of determining the Weighted Average Life to Maturity of (i) any Permitted Refinancing, (ii) any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended, or (iii) any term loans for purposes of incurring any other Indebtedness (in any such case, the “Applicable Indebtedness”), the effects of any amortization payments or other prepayments made on such Applicable Indebtedness (including the effect of any prepayment on remaining scheduled amortization) prior to the date of the applicable modification, refinancing, refunding, renewal, replacement, extension or incurrence shall be disregarded.
“wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (a) director’s qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.
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“Withdrawal Liability” means the liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” means the Borrower, any Guarantor or the Administrative Agent.
“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.
SECTION 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) (i)(i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(ii) References in this Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause refer (A) to the appropriate Exhibit or Schedule to, or Article, Section, clause or sub-clause in this Agreement or (B) to the extent such references are not present in this Agreement, to the Loan Document in which such reference appears.
(iii) The term “including” is by way of example and not limitation.
(iv) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(v) the phrase “permitted by” and the phrase “not prohibited by” shall be synonymous, and any transaction not specifically prohibited by the terms of the Loan Documents shall be deemed to be permitted by the Loan Documents;
(vi) the phrase “commercially reasonable efforts” shall not require the payment of a fee or other amount to any third party or the incurrence of any expense or liability by a Loan Party (or Affiliate) outside its ordinary course of its business;
(vii) the phrase “in good faith” when used with respect to a determination made by a Loan Party shall mean that such determination was made in the prudent exercise of its commercial judgment and shall be deemed to be conclusive if fully disclosed in writing (in reasonable detail) to the Administrative Agent and the Lenders and neither the Administrative Agent nor the Required Lenders have objected to such determination within fifteen (15) Business Days of such disclosure to the Administrative Agent and the Lenders;
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(viii)
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”; and
(ix) the term “continuing” means, with respect to a Default or Event of Default, that it has not been cured (including through performance) or waived.
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d) For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws) (a “Division”), if (a) any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
(e)
For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec
(or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be
subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (i) “personal
property” shall be deemed to include “movable property”,”
(ii) “real estate” or “real property” shall be deemed to include “immovable property”,”
(iii) “tangible property” shall be deemed to include “corporeal property”,”
(iv) “intangible property” shall be deemed to include “incorporeal property”,”
(v) “security interest”,”
“mortgage” and “lien” shall be deemed to include a “hypothec”,”
“prior claim” and a “resolutory clause”,”
(vi) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil
Code of Quebec, and any reference to a “financing statement” shall be deemed to include a reference to an application for
publication under the Civil Code of Quebec, (vii) all references to “perfection” of or “perfected” Liens shall
be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (viii) any “right
of offset”,”
“right of setoff” or similar expression shall be deemed to include a “right of compensation”,”
(ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title,
instruments, money and securities, (x) an “agent” shall be deemed to include a “mandatary”,”
(xi) “construction liens” shall be deemed to include “legal hypothecs”,”
(xii) “joint and several” shall be deemed to include “solidary”,”
(xiii) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”,”
(xiv) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”,”
(xv) “servitude” shall be deemed to include “easement”,”
(xvi) “priority” shall be deemed to include “prior claim”,”
(xvii) “survey” shall be deemed to include “certificate of location and plan”,”
(xviii) “fee simple title” shall be deemed to include “absolute ownership”,”
(xix) “foreclosure” shall be deemed to include “the exercise of a hypothecary right” and (xx) “lease”
shall be deemed to include a “leasing” (crédit-bail). The parties hereto confirm that it is their wish that
this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language
only (except if another language is required under any applicable Law) and that all other documents contemplated thereunder or relating
thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c'est
leur volonté que cette convention et les autres documents de crédit soient rédigés en anglais seulement et
que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés
en anglais seulement (sauf si une autre langue est requise en vertu d’une loi applicable).
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SECTION 1.03 Accounting and Finance Terms; Accounting Periods; Unrestricted Subsidiaries; Determination of Fair Market Value. All accounting terms, financial terms or components of such terms not specifically or completely defined herein shall be construed in conformity with GAAP to the extent GAAP defines such term or a component of such term. To the extent GAAP does not define any such term or a component of any such term, such term shall be calculated by the Borrower in good faith. For purposes of calculating any consolidated amounts necessary to determine compliance by any Person and, if applicable, its Restricted Subsidiaries with any ratio or other financial covenant in this Agreement, Unrestricted Subsidiaries shall be excluded. Unless the context indicates otherwise, any reference to a “fiscal year” shall refer to a fiscal year of the Borrower ending December 31, and any reference to a “fiscal quarter” shall refer to a fiscal quarter of the Borrower ending March 31, June 30, September 30 or December 31. All determinations of fair market value under a Loan Document shall be made by the Borrower in good faith and if such determination is consistent with a valuation or opinion of an Independent Financial Advisor, such determination shall be conclusive for all purposes under the Loan Documents or related to the Obligations.
SECTION 1.04 Rounding. Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one decimal place more than the number of decimal places by which such ratio is expressed herein (the “Applicable Decimal Place”) and rounding the result up or down to the Applicable Decimal Place.
SECTION 1.05
References to Agreements, Laws, Etc..
Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents)
and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are
permitted by this Agreement (including by way of amendment and/or waiver); and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
SECTION 1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
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SECTION
1.07 [Reserved]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 any reference rate referred to herein 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 (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
SECTION 1.08 Pro Forma Calculations; Limited Condition Transactions; Basket and Ratio Compliance.
.
(a) Notwithstanding anything to the contrary herein, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio shall be calculated in the manner prescribed by this Section 1.08; provided, that notwithstanding anything to the contrary in clauses (b), (c) or (d) of this Section 1.08, when calculating the Fixed Charge Coverage Ratio for purposes of Section 8.01, the events described in this Section 1.08 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
(b) For purposes of calculating the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio, Specified Transactions identified by the Borrower that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated Adjusted EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have consummated any Specified Transaction identified by the Borrower that would have required adjustment pursuant to this Section 1.08, then the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio shall be calculated to give pro forma effect thereto in accordance with this Section 1.08.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer and may include, for the avoidance of doubt, the amount of cost savings, operating expense reductions; synergies, material changes to amounts to be paid by or received by Loan Parties projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though amounts had been realized on the first day of such Test Period and as if any such cost savings, operating expense reductions and synergies were realized during the entirety of such period) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions (such amounts, “Specified Transaction Adjustments”); provided that (i) such Specified Transaction Adjustments are reasonably identifiable and quantifiable in the good faith judgment of the Borrower, (ii) such actions are taken, committed to be taken or expected to be taken no later than twenty-four months after the date of such Specified Transaction, and (iii) no amounts shall be included pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise included in calculating Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, with respect to any Test Period.
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(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio, as the case may be (in each case, other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period with respect to leverage ratios or the first day of such Test Period with respect to the Interest Coverage Ratio and the Fixed Charge Coverage Ratio.
(e) Notwithstanding anything in this Agreement or any Loan Document to the contrary
(i) the Borrower may rely on more than one basket or exception hereunder (including both ratio-based and non-ratio based baskets and exceptions, and including partial reliance on different baskets that, collectively, permit the entire proposed transaction) at the time of any proposed transaction, and the Borrower may, in its sole discretion, at any later time divide, classify or reclassify such transaction (or any portion thereof) in any manner that complies with the available baskets and exceptions hereunder at such later time (provided that with respect to reclassification of Indebtedness and Liens, any such reclassification shall be subject to the parameters of Sections 7.01 and 7.03, as applicable);
(ii) unless the Borrower elects otherwise, if the Borrower or its Restricted Subsidiaries in connection with any transaction or series of such related transaction (A) incurs Indebtedness, creates Liens, makes Dispositions, makes Investments, designates any Subsidiary as restricted or unrestricted or repays any Indebtedness or takes any other action under or as permitted by a ratio-based basket and (B) incurs Indebtedness, creates Liens, makes Dispositions, makes Investments, designates any Subsidiary as restricted or unrestricted or repays any Indebtedness or takes any other action under a non-ratio-based basket (which shall occur within five Business Days of the events in clause (A) above), then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such transaction or series of related transactions;
(iii) if the Borrower or its Restricted Subsidiaries enters into any revolving, delayed draw or other committed debt facility, the Borrower may elect to determine compliance of such debt facility (including the incurrence of Indebtedness and Liens from time to time in connection therewith) with this Agreement and each other Loan Document on the date commitments with respect thereto are first received, assuming the full amount of such facility is incurred (and any applicable Liens are granted) on such date, in which case such committed amount may thereafter be borrowed or reborrowed, in whole or in part, from time to time, without further compliance with the Loan Documents, in lieu of determining such compliance on any subsequent date (including any date on which Indebtedness is incurred pursuant to such facility); provided that, in each case, any future calculation of any such ratio based basket shall only include amounts borrowed and outstanding as of such date of determination; and
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(iv) if the Borrower or any Restricted Subsidiary incurs Indebtedness under a ratio-based basket, such ratio-based basket (together with any other ratio-based basket utilized in connection therewith, including in respect of other Indebtedness, Liens, Dispositions, Investments, Restricted Payments or payments in respect of Junior Financing) will be calculated excluding the cash proceeds of such Indebtedness for netting purposes (i.e., such cash proceeds shall not reduce the Borrower’s Consolidated Net Debt or Consolidated Secured Net Debt pursuant to clause (b) of the definition of such terms), provided that the actual application of such proceeds may reduce Indebtedness for purposes of determining compliance with any applicable ratio.
(f) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when
(i) calculating any applicable ratio in connection with the incurrence of Indebtedness, the creation of Liens, the making of any Disposition, the making of an Investment, the making of a Restricted Payment, the designation of a Subsidiary as restricted or unrestricted, the repayment of Indebtedness or for any other purpose,
(ii) determining the accuracy of any representation or warranty,
(iii) determining whether any Default or Event of Default has occurred, is continuing or would result from any action, or
(iv) determining compliance with any other condition precedent to any action or transaction;
in each case of clauses (i) through (iv) in connection with a Limited Condition Acquisition, the date of determination of such ratio, the accuracy of such representation or warranty (but taking into account any earlier date specified therein), whether any Default or Event of Default has occurred, is continuing or would result therefrom, or the satisfaction of any other condition precedent shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”). If on a Pro Forma Basis after giving effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such ratios, representations and warranties, absence of defaults, satisfaction of conditions precedent and other provisions are calculated as if such Limited Condition Acquisition or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date for which financial statements are available, the Borrower could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless a Specified Event of Default is continuing on the date on which such Limited Condition Acquisition is consummated. For the avoidance of doubt, (i) if any of such ratios, representations and warranties, absence of defaults, satisfaction of conditions precedent or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated Adjusted EBITDA), a change in facts and circumstances or other provisions at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios, representations and warranties, absence of defaults, satisfaction of conditions precedent and other provisions will not be deemed to have been exceeded, breached, or otherwise failed as a result of such fluctuations or changed circumstances solely for purposes of determining whether the Limited Condition Acquisition and any related transactions is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Acquisition or related Specified Transactions.
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If the Borrower has made
an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability
with respect to any other Specified Transaction or otherwise on or following the relevant LCA Test Date and prior to the earlier of the
date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement for such Limited Condition Acquisition
is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a
Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of
Indebtedness and the use of proceeds thereof) have been consummated. For purposes of any calculation pursuant to this clause (f)
of the Interest Coverage Ratio, Consolidated Interest Expense may be calculated using an assumed interest rate for the Indebtedness to
be incurred in connection with such Limited Condition Acquisition based on the indicative interest margin contained in any financing commitment
documentation with respect to such Indebtedness or, if no such indicative interest margin exists, as reasonably determined by the Borrower
in good faith. Notwithstanding the forgoing, (i) in connection with any transaction permitted hereunder that requires satisfaction of
the Payment Conditions, the Borrower will be required to comply as of the date of such transaction with the Excess Availability requirements
(but not, for the avoidance of doubt, clause (i) of the definition of “Payment Conditions” or any requirements relating to
the Fixed Charge Coverage that are satisfied on the LCA Test Date to the extent the Borrower shall have made an LCA Election in connection
with such transaction) set forth in the definition of “Payment Conditions”,”
regardless of whether the Borrower shall have made an LCA Election in connection with such transaction and (ii) in connection with any
Credit Extension, the Total Utilization of Revolving Commitments shall not exceed the Line Cap on the date of such Credit Extension (other
than as provided under Section 2.02).
(g) For purposes of calculating the Permitted Ratio Debt and Section 7.01(i) (including for purposes of Section 7.03(l)(ii)), the phrase “immediately prior to such incurrence” shall be construed to apply only if, at the time of such determination, on a Pro Forma Basis for such incurrence of Indebtedness and/or Liens (and for any related Permitted Investment, if applicable), (i) the First Lien Net Leverage Ratio would be greater than the Closing Date First Lien Net Leverage Ratio, (ii) the Secured Net Leverage Ratio would be greater than the Closing Date Secured Net Leverage Ratio, (iii) the Total Net Leverage Ratio would be greater than the Closing Date Total Net Leverage Ratio or (iv) the Interest Coverage Ratio would be less than 2.00 to 1.00, as applicable.
(h) For purposes of determining the maturity date of any Indebtedness, bridge loans that are subject to customary conditions (as determined by the Borrower in good faith, including conditions requiring no payment or bankruptcy event of default) that would either automatically be extended as, converted into or required to be exchanged for permanent refinancing shall be deemed to have the maturity date as so extended, converted or exchanged.
SECTION 1.09 Currency Equivalents Generally.
.
(a) No Default or Event of Default shall be deemed to have occurred under a Loan Document solely as a result of changes in rates of currency exchange occurring after the time any applicable action (including any incurrence of a Lien or Indebtedness or the making of an Investment) so long as such action (including any incurrence of a Lien or Indebtedness or the making of an Investment) was permitted hereunder when made.
(b) For purposes of this Agreement and the other Loan Documents, where the permissibility of a transaction or determinations of required actions or circumstances depend upon compliance with, or are determined by reference to, amounts stated in Dollars, any requisite currency translation shall be based on the rate of exchange between the applicable currency and Dollars as reasonably determined by the Borrower, in each case in effect on the Business Day immediately preceding the date of such transaction or determination (subject to clauses (c) and (d) below) and shall not be affected by subsequent fluctuations in exchange rates; provided, that the determination of any Dollar Amount shall be made in accordance with Section 2.23.
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(c) For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the Exchange Rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt (or, in the case of an LCA Election, on the date of the applicable LCA Test Date); provided that, if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the Exchange Rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Indebtedness so refinanced does not exceed the principal amount of such Indebtedness being refinanced; provided, further that the determination of any Dollar Amount shall be made in accordance with Section 2.23. Notwithstanding the foregoing, the principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the Exchange Rate that is in effect on the date of such refinancing.
(d) For purposes of determining the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio, including Consolidated Adjusted EBITDA when calculating such ratios, all amounts denominated in a currency other than Dollars will be converted to Dollars for any purpose (including testing the any financial maintenance covenant) at the effective rate of exchange in respect thereof reflected in the consolidated financial statements of the Borrower for the applicable Test Period for which such measurement is being made, and will reflect the currency translation effects, determined in accordance with GAAP, of Hedge Agreements permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such Indebtedness.
(e) All references in the Loan Documents to Loans, Letters of Credit, Obligations, Borrowing Base components and other amounts shall be denominated in Dollars, unless expressly provided otherwise. The Dollar Amount of any amounts denominated or reported under a Loan Document in a currency other than Dollars shall be determined by the Administrative Agent on a daily basis based on the current Exchange Rate. The Borrower shall report Borrowing Base components to the Administrative Agent in the currency invoiced by the Loan Parties or shown in the Loan Parties’ financial records, and unless expressly provided otherwise, the Borrower shall deliver financial statements and calculate financial covenants in Dollars. Notwithstanding anything herein to the contrary, if any Obligation is funded and expressly denominated in a currency other than Dollars, the Borrower shall repay such Obligation in such other currency.
SECTION 1.10
Co-Borrowers. Notwithstanding anything herein to the contrary, the Borrower, upon 15 Business
Days’ prior written notice to the Administrative Agent (or such shorter period as reasonably agreed by the Administrative Agent),
may cause any Loan Party on or after the Closing Date by written election to the Administrative Agent to become a borrower (each such
Loan Party, a “Co-Borrower”,”
and, together with the Borrower, the “Co-Borrowers”) under each of the Facilities hereunder on a joint and several
basis (such date, the “Co-Borrower Effective Date”); provided that such Loan Party shall (i) execute a joinder
to this Agreement in form and substance reasonably satisfactory to the Administrative Agent assuming all obligations of a Co-Borrower
hereunder, (ii) at least three Business Days prior to such Co-Borrower Effective Date, provide to the Administrative Agent and the Lenders
all documentation and other information required by United States regulatory authorities under applicable “know your customer”
and anti-money laundering Laws, including without limitation Title III of the USA Patriot Act, that shall be reasonably requested by the
Administrative Agent in writing at least 10 Business Days prior to the consummation of such joinder and (iii) provide to the Administrative
Agent and the Lenders, if such Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation,
a Beneficial Ownership Certification and (iv) be a domestic Subsidiary Guarantor wholly owned by the Borrower. The Lenders hereby irrevocably
authorize the Administrative Agent to enter into any amendment to this Agreement or to any other Loan Document as may be necessary or
appropriate in order to establish any additional Borrower pursuant to this Section 1.10 and such technical amendments, and other
customary amendments with respect to provisions of this Agreement relating to taxes for borrowers, in each case as may be necessary or
appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection therewith.
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Upon the later of execution and delivery of a joinder to this Agreement by a Co-Borrower and the countersignature of the Administrative Agent thereto, each Co-Borrower agrees that it is jointly and severally liable for the obligations of each other Co-Borrower hereunder with respect to any Class of Loans on an individual tranche basis, including with respect to the payment of principal of and interest on all Loans on an individual tranche basis, the payment of amounts owing in respect of Letters of Credit and the payment of fees and indemnities and reimbursement of costs and expenses. Each Co-Borrower is accepting joint and several liability hereunder in consideration of the financial accommodations to be provided by the Administrative Agent, the Collateral Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each of the Co-Borrowers and in consideration of the undertakings of each of the Co-Borrowers to accept joint and several liability for the obligations of each of them. Each Co-Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, as a co-debtor, joint and several liability with each other Co-Borrower, with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all Obligations shall be the joint and several obligations of all of the Co-Borrowers without preferences or distinction among them. If and to the extent that any of the Co-Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of such Obligations in accordance with the terms thereof, then in each such event each other Borrower will make such payment with respect to, or perform, such Obligations. Each Co-Borrower further agrees that the Borrower will be such Co-Borrower’s agent for administrative, mechanical, and notice provisions in this Agreement and any other Loan Document and the Lenders and the Administrative Agent hereby agree that each Co-Borrower will have the same rights under the Loan Documents as if it is the Borrower and for any other purposes under the provisions of this Agreement, including the affirmative and negative covenants, each such Co-Borrower will be treated as a Restricted Subsidiary that is a Subsidiary Guarantor.
ARTICLE
II
The Commitments and Borrowings
SECTION 2.01 Revolving Loans.
(a) Revolving Loan Commitment. During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender severally agrees to make revolving loans to the Borrower from time to time on any Business Day in Dollars and/or any Alternative Currency (“Revolving Loans”) in an aggregate amount (expressed in the Dollar Amount thereof in the case of an Alternative Currency) up to but not exceeding such Lender’s Revolving Commitment; provided, that after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving Commitments exceed the Line Cap. Within the foregoing limits and subject to the terms and conditions set forth herein (including the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.02), amounts borrowed pursuant to this Section 2.01(a) may be repaid and reborrowed during the Revolving Commitment Period. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date, and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
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(b) Borrowing Mechanics for Revolving Loans.
(i)
Subject to Section 4.01(a)(i) in the case of Borrowings of Revolving Loans on the Closing
Date only and Section 4.02(c) in the case of each other Borrowing of Revolving Loans, each Borrowing of Revolving Loans shall
be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may only be given in writing (each request for
a Swing Line Loan Borrowing shall be made in accordance with Section 2.03). Each such notice must be received by the Administrative
Agent not later than (A) 1:00 p.m. (New York City time) three Business Days prior to the requested date of any Borrowing of Eurocurrency
RateTerm SOFR Loans or Alternative Currency Loans,
and (B) 1:00 p.m. (New York City time) one Business Day prior to the requested date of any Borrowing of Base Rate Loans; provided,
that such notices may be conditioned on the occurrence of the Closing Date or
the Amendment No. 2 Effective Date, the commercially reasonable efforts of the Borrower to deliver a Borrowing Base Certificate
or, with respect to any Incremental Facility, the occurrence of any transaction anticipated to occur in connection with such Incremental
Facility; provided, further, that if the Borrower wishes to request Eurocurrency RateTerm
SOFR Loans denominated in Dollars having an Interest Period other than one,
two, 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 11:00 a.m. four Business Days prior to the requested date of such Borrowing,
conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and
determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three Business Days before the
requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be
by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each notice by the Borrower pursuant
to this Section 2.01(b) must be delivered to the Administrative Agent in the form of a Committed Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Each Borrowing of Eurocurrency RateTerm
SOFR Loans or Alternative Currency Loans shall be in a principal amount of (A) $500,000 or a whole multiple of $100,000 in
excess thereof in the case of Eurocurrency Rate Loans denominated in Dollars, (B) C$500,000 or a whole
multiple of C$100,000 in excess thereof in the case of Eurocurrency Rate Loans denominated in Canadian Dollars and (CTerm
SOFR Loans and (B) a Dollar Amount of $500,000 or a whole multiple of $100,000 in excess thereof in the case of Eurocurrency
RateAlternative Currency Loans denominated in any
Alternative Currency other than Canadian Dollars. Each Borrowing of Base Rate Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (1) that
the Borrower is requesting a Revolving Loan Borrowing, (2) the requested date of the Borrowing (which shall be a Business Day), (3) the
principal amount of Revolving Loans to be borrowed, (4) the Type of Revolving Loans to be borrowed, (5) with respect to any Eurocurrency
RateTerm SOFR Loan or Alternative Currency Loan,
the currency of the Revolving Loan, which shall be Dollars or an Alternative Currency; provided that the Borrower shall deliver
to the Administrative Agent any request for designation of an Alternative Currency other than Canadian
Dollars and Euros in accordance with Section 11.02, to be received by the Administrative Agent no later than 11:00
a.m. (New York City time) at least 15 Business Days in advance of the date of any Borrowing hereunder proposed to be made in such Alternative
Currency (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters
of Credit, the applicable Issuing Bank(s), in its or their sole discretion) and (6) if applicable, the duration of the Interest Period
with respect thereto. Each Swing Line Loan shall be a Base Rate Loan or an
Alternative Currency Daily Rate Loan denominated in Canadian Dollars. If the Borrower fails to specify a Type of Revolving
Loan in a Committed Loan Notice, then (x) in the case of Revolving Loans denominated in Dollars, the applicable Revolving Loans shall
be made as Base Rate Loans and (y) in the case of Revolving Loans denominated in an Alternative Currency, the applicable Revolving Loans
shall be made as EurocurrencyAlternative
Currency Term Rate Loans with an Interest Period of one month. If the Borrower requests a Borrowing of EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period
for such EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans, the Borrower will be deemed to have specified an Interest Period of one
month.
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(ii)
Borrowings of more than one Type may be outstanding at the same time: provided that the total
number of Interest Periods for EurocurrencyTerm
SOFR Loans and Alternative Currency Term Rate Loans outstanding under this Agreement at any time shall comply with Section
2.10(g).
(iii) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Revolving Loans. In the case of each Borrowing, each Appropriate Lender shall make the amount of its Revolving Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. (New York City time), on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (or if such Borrowing is on the Closing Date, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower (or, to the extent directed by the Borrower pursuant to clause (B) below, to a Subsidiary Guarantor on behalf of the Borrower) in like funds as received by the Administrative Agent either by (A) crediting the account of the Borrower on the books of the Administrative Agent with the amount of such funds or (B) wire transfer of such funds to an account of the Borrower or a Subsidiary Guarantor, in each case, in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower (provided that, notwithstanding anything herein to the contrary, to the extent the wire transfer of such funds shall be to an account of a Subsidiary Guarantor, the Borrower shall set forth the applicable account and wire instructions of such Subsidiary Guarantor in the Committed Loan Notice for such Borrowing); provided, however, that if, on the date the Committed Loan Notice with respect to such Borrowing is given by the Borrower, there are Swing Line Loans denominated in Dollars outstanding or Reimbursement Obligations outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such Reimbursement Obligations, second, to the payment in full of any such Swing Line Loans denominated in Dollars and third, to the Borrower as provided above.
(iv) The failure of any Lender to make the Revolving Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to be made by such other Lender on the date of any Borrowing.
SECTION 2.02 Protective Advances.
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.
(a) Subject to the limitations set forth below (and notwithstanding anything to the contrary in Section 4.02), the Administrative Agent is authorized by the Borrower and the Lenders, from time to time in the Administrative Agent’s sole discretion in the exercise of its commercially reasonable judgment (but shall not have any obligation) to make Revolving Loans denominated in Dollars to the Borrower, on behalf of all Lenders at any time that any condition precedent set forth in Section 4.02 has not been satisfied or waived, which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Revolving Loans and other Obligations or (iii) to pay any other amount chargeable to or required to be paid by the Borrower pursuant to the terms of this Agreement, including payments of reimbursable expenses (including costs, fees, and expenses as described in Section 11.04) and other sums, in each case to the extent due and payable (and not in dispute by the Borrower (acting in good faith)) under the Loan Documents (each such Revolving Loan, a “Protective Advance”). Any Protective Advance may be made in a principal amount that would cause the Total Utilization of Revolving Commitments to exceed the Borrowing Base; provided that no Protective Advance may be made to the extent that, after giving effect to such Protective Advance (together with the outstanding principal amount of any outstanding Protective Advances), the aggregate principal amount of Protective Advances outstanding hereunder would exceed 10.0% of the Borrowing Base as determined on the date of such proposed Protective Advance; provided, further, that the total Revolving Exposure shall not exceed the aggregate amount of the Revolving Commitments then in effect. Each Protective Advance shall be secured by the Liens in favor of the Administrative Agent in and to the Collateral and shall constitute Obligations hereunder. The Agent’s authorization to make Protective Advances may be revoked by the Required Lenders at any time. Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof. The making of a Protective Advance on any one occasion shall not obligate the Administrative Agent to make any Protective Advance on any other occasion. At any time (and in any event no less than weekly) that the conditions precedent set forth in Section 4.02 have been satisfied or waived, the Administrative Agent may request the Lenders to make a Revolving Loan to repay a Protective Advance. At any other time, the Administrative Agent may require the Lenders to fund their risk participations described in Section 2.04(b). Each Protective Advance shall be a Base Rate Loan.
(b) Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default or Event of Default), each Lender shall be deemed, without further action by any party hereto, unconditionally and irrevocably to have purchased from the Administrative Agent without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Pro Rata Share. From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest and all proceeds of Collateral (if any) received by the Administrative Agent in respect of such Protective Advance.
SECTION 2.03 Swing Line Loans.
.
(a)
Swing Line Loan. Subject to the terms and conditions set forth herein, the Swing Line Lender,
in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03, agrees to make Swing Line Loans denominated
in Dollars or Canadian Dollars to the Borrower from time to time
on any Business Day during the Revolving Commitment Period, in an aggregate principal amount not to exceed at any time outstanding the
amount of the Swing Line Sublimit; provided that, after giving effect to any Swing Line Loan, (i) the Total Utilization of
Revolving Commitments shall not exceed the Line Cap, (ii) the Total Utilization of Revolving Commitments of any Revolving Lender
shall not exceed such Lender’s Revolving Commitment and,
(iii) the aggregate principal amount outstanding of all Swing Line Loans shall not exceed the Swing Line Sublimit and
(iv) the aggregate principal amount outstanding of all Swing Line Loans denominated in Canadian Dollars shall not exceed $25,000,000;
provided, further, that the Swing Line Lender shall not be required to make a Swing Line Loan to refinance an outstanding
Swing Line Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Swing Line Loans. Immediately upon the making of a Swing Line Loan denominated
in Dollars by the Swing Line Lender, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Swing Line Lender a participation in such Swing Line Loan in an amount equal to such Revolving Lender’s Pro
Rata Share of the amount of such Swing Line Loan.
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(b)
Borrowing Mechanics for Swing Line Loans. Each Swing Line Loan Borrowing shall be made upon
the Borrower irrevocable notice to the Swing Line Lender. Each such notice may be given by: (A) telephone, or (B) a Swing Line Loan Request;
provided that any telephonic notice by the Borrower must be confirmed immediately by delivery to the Swing Line Lender and the
Administrative Agent of a Swing Line Loan Request. Each such Swing Line Loan Request must be received by the Swing Line Lender and the
Administrative Agent not later than 12:00 noon (New York City time) on the date of the requested Swing Line Loan Borrowing, and such
notice shall specify (i) the amount to be borrowed, which shall be in a minimum principal amount of $100,000 or a whole multiple of $25,000
in excess thereof, (or C$100,000
or a whole multiple of C$25,000 in excess thereof in the case of Swing Line Loans denominated in Canadian Dollars), and (ii) the
date of such Swing Line Loan Borrowing (which shall be a Business Day). Promptly after receipt by the Swing Line Lender of such notice,
the Swing Line Lender will confirm with the Administrative Agent that the Administrative Agent has also received such notice and, if not,
the Swing Line Lender will notify the Administrative Agent of the contents thereof. Unless the Swing Line Lender has received notice from
the Administrative Agent (including at the request of the Required Lenders) prior to 2:00 p.m. (New York City time) on such requested
borrowing date (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the
first sentence of Section 2.03(a) or (B) that one or more of the applicable conditions set forth in Section 4.02
is not then satisfied, then, subject to the terms and conditions set forth herein, the Swing Line Lender shall make each Swing Line Loan
available to the Borrower, by wire transfer thereof in accordance with instructions provided to (and reasonably acceptable to) the Swing
Line Lender, not later than 3:00 p.m. (New York City time) on the requested date of such Swing Line Loan (which instructions may
include standing payment instructions, which may be updated from time to time by the Borrower, provided that, unless the Swing
Line Lender shall otherwise agree, any such update shall not take effect until the Business Day immediately following the date on which
such update is provided to the Swing Line Lender).
(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
Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Revolving
Loan that is a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans denominated
in Dollars made by thenthe
Swing Line Lender then outstanding (the “Refunded Swing Line Loans”). Such request shall be made in writing (which
written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance (including with respect to prior
notice requirements) with the requirements of Section 2.03(b), without regard to the minimum and multiples specified therein,
but subject to the aggregate unused Revolving Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of such Committed Loan Notice promptly after delivering such notice to the Administrative Agent.
Each Revolving Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Committed Loan Notice available
to the Administrative Agent in immediately available 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 not later than 1:00
p.m. (New York City time) on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.03(c)(ii), each
Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower
in such amount.
(ii) If for any reason any Swing Line Loan denominated in Dollars cannot be refinanced by such a Revolving Loan Borrowing in accordance with Section 2.03(c)(i), the request for Revolving Loans that are Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Lenders fund its participation in the relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.03(c)(i) shall be deemed payment in respect of such participation. The Administrative Agent shall notify the Borrower on the last Business Day of such week of any participations in any Swing Line Loan funded during such week pursuant to this clause (ii), and thereafter payments in respect of such Swing Line Loan (to the extent of such funded participations) shall be made to the Administrative Agent for the benefit of the Lenders and not to the Swing Line Lender.
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(iii) If any Revolving 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 Revolving Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(i) or (ii), the Swing Line Lender (acting through the Administrative Agent) shall be entitled to recover from such Revolving Lender, 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 Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate from time to time in effect and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Loan Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted (through the Administrative Agent) to any Revolving Lender with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund participations in Swing Line Loans denominated in Dollars pursuant to this Section 2.03(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02; provided, further, that for the avoidance of doubt, the conditions set forth in Section 4.02 shall not apply to the purchase or funding of participations pursuant to this Section 2.03(c). No such funding of participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased and funded a participation in a Swing Line Loan denominated in Dollars, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will promptly remit such Revolving Lender’s Pro Rata Share of such payment to the Administrative Agent (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s participation was funded) in like funds as received by the Swing Line Lender, and any such amounts received by the Administrative Agent will be remitted by the Administrative Agent to the Revolving Lenders that shall have funded their participations pursuant to Section 2.03(c)(ii) to the extent of their interests therein.
(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 11.06 (including pursuant to any settlement entered into by the Swing Line Lender in its reasonable discretion), each Revolving Lender shall pay to such Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned at a rate per annum equal to the Federal Funds Rate from time to time in effect. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Revolving Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
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(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans made by the Swing Line Lender. Until each Revolving Lender funds its Revolving Loan that is a Base Rate Loan or participation pursuant to this Section 2.03 to refinance such Lender’s Pro Rata Share of any Swing Line Loan denominated in Dollars made by the Swing Line Lender, interest in respect of such Lender’s share thereof shall be solely for the account of the Swing Line Lender. At all times the interest in respect of any Swing Line Loan denominated in Canadian Dollars shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. Except as otherwise expressly provided herein, the Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
SECTION 2.04 Issuance of Letters of Credit and Purchase of Participations Therein.
.
(a) Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each Issuing Bank agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the Revolving Commitment Period on or prior to the fifth Business Day prior to the Revolving Commitment Termination Date, to issue Letters of Credit for the account of the Borrower or a Restricted Subsidiary (provided that any Letter of Credit issued for the benefit of any Restricted Subsidiary shall be issued for the account of the Borrower but such Letter of Credit shall indicate that it is being issued for the benefit of such Restricted Subsidiary) and to amend, renew or extend Letters of Credit previously issued by it, in accordance with Section 2.04(b) and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in such Letters of Credit and any drawings thereunder; provided that the Issuing Banks shall not be obligated to make any Letter of Credit Extension if, as of the date of such Letter of Credit Extension, (1) the Total Utilization of Revolving Commitments would exceed the Line Cap, (2) the Total Utilization of Revolving Commitments of any Revolving Lender, would exceed such Lender’s Revolving Commitment, (3) the Letter of Credit Usage would exceed the Letter of Credit Sublimit or (4) the Letter of Credit Usage with respect to Letters of Credit issued by such Issuing Bank would exceed the amount of such Issuing Bank’s Letter of Credit Percentage of the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower 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) An Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
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(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it (for which such Issuing Bank is not otherwise compensated hereunder);
(B) the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $10,000;
(D)
such Letter of Credit is to be denominated in a currency other than Dollars,
Canadian Dollars or, if agreed by such Issuing Bank, an Alternative Currency;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; and
(F) any Revolving Lender is at such time a Defaulting Lender, unless such Issuing Bank has entered into arrangements, including reallocation of such Lender’s Pro Rata Share of the outstanding Letter of Credit Obligations pursuant to Section 2.19(a)(iii) or the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.19(a)(iii)) with respect to such Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other Letter of Credit Obligations as to which such Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iii) No Issuing Bank shall be under any obligation to amend or extend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue the 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 thereto.
(iv) Unless Cash Collateralized or backstopped pursuant to arrangements reasonably acceptable to the applicable Issuing Bank, each standby Letter of Credit shall expire at or prior to the close of business on the earlier of (A) the date twelve months after the date of issuance of such Letter of Credit (or, in the case of any Auto-Renewal Letter of Credit, twelve months after the then current expiration date of such Letter of Credit) and (B) the Letter of Credit Expiration Date (unless arrangements reasonably satisfactory to the Issuing Banks have been entered into).
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto Renewal Letters of Credit.
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.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the irrevocable request of the Borrower delivered to the applicable Issuing Bank (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 Borrower. Such Letter of Credit Application must be received by the applicable Issuing Bank and the Administrative Agent not later than 2:00 p.m. (New York City time) at least five Business Days (or such shorter period as the applicable Issuing Bank and the Administrative Agent 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 shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank (A) the proposed issuance date of the requested Letter of Credit (which shall 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; and (G) the currency in which the requested Letter of Credit will be denominated (which must be Dollars or, if approved by such Issuing Bank, an Alternative Currency) and (H) such other matters as the applicable Issuing Bank may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, the Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); and (3) the nature of the proposed amendment. Additionally, the Borrower shall furnish to the applicable Issuing Bank and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Letter of Credit Documents, as the applicable Issuing Bank or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable Issuing Bank will confirm with the Administrative Agent that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the applicable Issuing Bank will provide the Administrative Agent with a copy thereof. Upon receipt by the applicable Issuing Bank of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions set forth herein, such Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Issuing Bank a participation in such Letter of Credit in an amount equal to such Lender’s Pro Rata Share of the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application for a standby Letter of Credit, the applicable Issuing Bank may, in its reasonable discretion, agree to issue a standby Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit shall permit such Issuing Bank to prevent any such renewal 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 “Nonrenewal 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 Issuing Bank, the Borrower shall not be required to make a specific request to such Issuing Bank for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the applicable Issuing Bank to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that no Issuing Bank shall (A) permit any such renewal if (1) such Issuing Bank has determined that it would not be permitted at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.04(a) or otherwise) or (2) it has received written notice on or before the day that is thirty (30) days before the Nonrenewal Notice Date from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (B) be obligated to permit such renewal if it has received written notice on or before the day that is thirty (30) days before the Nonrenewal Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and in each such case directing the applicable Issuing Bank not to permit such renewal.
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(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 Issuing Bank will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursement; 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 Issuing Bank shall notify the Borrower and the Administrative Agent thereof, and such Issuing Bank shall, within
a reasonable time following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter
of Credit. If an Issuing Bank notifies the Borrower of any payment by such Issuing Bank under a Letter of Credit, then the Borrower shall
reimburse such Issuing Bank in an amount equal to the amount of such drawing not later than 3:00 p.m. (New York City time, in the case
of drawings in Dollars or Canadian Dollars, or London time, in the case of drawings in an Alternative Currency) on the next succeeding
Business Day. If the Borrower fails to so reimburse such Issuing Bank by such time, such Issuing Bank shall promptly notify the Administrative
Agent of such failure and the Administrative Agent shall promptly thereafter notify each Revolving Lender of such payment date, the amount
of the unreimbursed drawing (expressed in the Dollar Amount thereof in the case of an Alternative Currency) (the “Reimbursement
Obligations”) and the amount of such Lender’s Pro Rata Share thereof. In such event, (x)
the Borrower shall be deemed to have requested a Revolving Loan Borrowing of Base Rate Loans to be disbursed on such date
in an amount equal to such Reimbursement Obligation, without regard to the minimum and multiples specified
in Section 2.02(b) for the principal amount of Base Rate Loans and (y) in the case of Reimbursement
Obligations denominated in an Alternative Currency (but expressed in its Dollar Amount), the Borrower shall be deemed to have requested
on behalf of the applicable Revolving Lender Revolving Loans that are Eurocurrency Rate Loans denominated in Dollars, in each case, to
be disbursed on such date in an amountthe Dollar Amount
equal to (A) the Dollar Amount of such Reimbursement Obligation, plus (B) in the case
of any Reimbursement Obligation denominated in any Alternative Currency (but expressed in its Dollar Amount), an additional amount equal
to the amount required to convert Dollars into the currency of the unreimbursed drawing, without regard to the minimum and multiples specified
in Section 2.03(b) for the principal amount of Base Rate Loans, but subject to the Line Cap and the conditions set forth in Section
4.02 (other than delivery of a Committed Loan Notice). Any notice given by an Issuing Bank or the Administrative Agent pursuant to
this clause (i) shall be given in writing.
(ii)
Each Revolving Lender (including each Revolving Lender acting as an Issuing Bank) shall 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 Issuing Bank, in Dollars , Canadian Dollars or the applicable
Alternative Currency, at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the relevant
Reimbursement Obligation (expressed in its Dollar Amount in the case of any
Reimbursement Obligation denominated in any Alternative Currency) not later than 3:00 p.m. (New York City time) on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.04(c)(iii), each Revolving
Lender that so makes funds available shall be deemed to have made a Revolving Loan that is (A) in the
case of Letters of Credit denominated in Dollars, a Base Rate Loan and (B) in the case
of Letters of Credit denominated in an Alternative Currency, a Eurocurrency Rate Loan in such Alternative Currency with an Interest Period
of one month, in each case to the Borrower in such amountDollar
Amount plus, in the case of any Reimbursement Obligation denominated in any Alternative Currency (but expressed
in its Dollar Amount), an additional amount equal to the amount required to convert Dollars into the currency of the unreimbursed drawing.
The Administrative Agent shall remit the funds so received to the applicable Issuing Bank in accordance with the instructions provided
to the Administrative Agent by such Issuing Bank (which instructions may include standing payment instructions, which may be updated from
time to time by such Issuing Bank, provided that, unless the Administrative Agent shall otherwise agree, any such update shall
not take effect until the Business Day immediately following the date on which such update is provided to the Administrative Agent).
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(iii)
With respect to any Reimbursement Obligation that is not fully refinanced by a Revolving Loan Borrowing
of Base Rate Loans for Letters of Credit denominated in Dollars or Eurocurrency Rate Loans for Letters
of Credit denominated in an Alternative Currency, as the case may be, because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable Issuing Bank a Letter of
Credit Borrowing in the amount of the Reimbursement Obligation that is not so refinanced plus, in the case of any Reimbursement
Obligation denominated in an Alternative Currency (but expressed in its Dollar Amount), an additional amount equal to the amount required
to convert Dollars into the currency of the unreimbursed drawing, which Letter of Credit Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate then applicable to Revolving Loans that are Base Rate Loans. In such
event, each Revolving Lender’s payment to the Administrative Agent for the account of such Issuing Bank pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a Letter of Credit Advance
from such Lender in satisfaction of its participation obligation under this Section.
(iv) Until each Revolving Lender funds its Revolving Loan or Letter of Credit Advance to reimburse the applicable Issuing Bank for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of such Issuing Bank.
(v) Each Revolving Lender’s obligations to make Revolving Loans or Letter of Credit Advances to reimburse an Issuing Bank for amounts drawn under Letters of Credit, as contemplated by this Section 2.04(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such Issuing Bank, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Lender’s obligation to make Revolving Loans pursuant to this paragraph (c) is subject to the conditions set forth in Section 4.02. No such funding of a participation in any Letter of Credit shall relieve or otherwise impair the obligation of the Borrower to reimburse an Issuing Bank for the amount of any payment made by such Issuing Bank under such Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount required to be paid by such Lender pursuant to the foregoing provisions of this paragraph (c) by the time specified in Section 2.04(c)(ii), then, without limiting the other provisions of this Agreement, such Issuing Bank shall 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 Issuing Bank at a rate per annum equal to the greater of the Federal Funds Rate from time to time in effect and a rate determined by such Issuing Bank in accordance with banking industry rules on interbank compensation, plus any reasonable administrative, processing or similar fees customarily charged by such Issuing Bank 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 Revolving Loan included in the relevant Borrowing or Letter of Credit Advance in respect of the relevant Letter of Credit Borrowing, as the case may be. A certificate of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
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(d) Repayment of Participations.
(i) If, at any time after the applicable Issuing Bank has made payment in respect of any drawing under any Letter of Credit issued by it and has received from any Revolving Lender its Letter of Credit Advance in respect of such payment in accordance with Section 2.04(c), if the Administrative Agent receives for the account of such Issuing Bank any payment in respect of the related Reimbursement Obligation or, in the case of any Reimbursement Obligation denominated in any Alternative Currency (but expressed in its Dollar Amount), an additional amount equal to the amount required to convert Dollars into the currency of the unreimbursed drawing or, in each case, interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Letter of Credit Advance was outstanding) in like funds as received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the applicable Issuing Bank pursuant to Section 2.04(c)(i) is required to be returned under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by such Issuing Bank in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such Issuing Bank its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Revolving Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the Issuing Banks for each drawing under each Letter of Credit and to repay each Letter of Credit Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit or any term or provision thereof, any Loan Document, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuing Banks or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by an Issuing Bank under such Letter of Credit against presentation of documents that do not comply strictly with the terms of such Letter of Credit; or any payment made by an Issuing Bank 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 arising in connection with any case or proceeding under any Debtor Relief Law;
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(v) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower.
The Borrower shall 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 Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable Issuing Bank. The Borrower shall be conclusively deemed to have waived any such claim against any Issuing Bank and its correspondents unless such notice is given as aforesaid.
(f) Role of Issuing Banks. Each Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the Issuing Banks shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any document or the authority of the Person executing or delivering any document. None of any Issuing Bank, any Agent Affiliate nor any of the respective correspondents, participants or assignees of any Issuing Bank shall be liable to any Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the requisite Revolving Lenders; (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 Letter of Credit Application. The Borrower hereby assumes all risks of the acts of omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Issuing Banks, any Agent Affiliate nor any of the respective correspondents, participants or assignees of the Issuing Banks shall be liable or responsible for any of the matters described in Section 2.04(e); provided that, notwithstanding anything in such clauses to the contrary, the Borrower may have a claim against an Issuing Bank, and an Issuing Bank may be liable to the Borrower, to the extent, but only to the extent, of any direct (as opposed to indirect, special, punitive, consequential or exemplary) damages suffered by the Borrower which a court of competent jurisdiction determines in a final non-appealable judgment were caused by such Issuing Bank’s gross negligence or willful misconduct or such Issuing Bank’s willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a document(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the applicable Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the Issuing Banks shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The Issuing Banks 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 communication with a beneficiary.
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(g) Applicability of ISP. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a standby Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to such standby Letter of Credit.
(h) Conflict with Letter of Credit Application. In the event of any conflict between the terms of this Agreement and the terms of any Letter of Credit Application, the terms hereof shall control.
(i) Reporting. Each day (or at such other intervals as the Administrative Agent and the applicable Issuing Bank shall agree), the applicable Issuing Bank shall provide to the Administrative Agent a schedule of the Letters of Credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the original face amount (if any), the expiration date, and the reference number of any Letter of Credit outstanding at any time during such month, and showing the aggregate amount (if any) payable by the Borrower to such Issuing Bank during such month.
(j) Existing Letters of Credit. Subject to the terms and conditions hereof, (i) Letters of Credit may be issued on the Closing Date to backstop or replace letters of credit outstanding on the Closing Date or (ii) all letters of credit issued for the account of the Borrower or any Restricted Subsidiary and outstanding on the Closing Date and issued by an entity that is an Issuing Bank under this Agreement, which, by its execution of this Agreement, has agreed to act as an Issuing Bank hereunder and listed on Schedule 2.04 (each, an “Existing Letter of Credit”) shall automatically be continued hereunder on the Closing Date by such Issuing Bank, and as of the Closing Date the Lenders shall acquire a participation therein as if such Existing Letter of Credit were issued hereunder, and each such Existing Letter of Credit shall be deemed a Letter of Credit for all purposes of this Agreement as of the Closing Date without any further action by the Borrower.
(k) Resignation and Removal of an Issuing Bank. Any Issuing Bank may resign as an Issuing Bank upon sixty (60) days’ prior written notice to the Administrative Agent, the Lenders and the Borrower. Any Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the Issuing Bank being replaced (provided that no consent will be required if the Issuing Bank being replaced has no Letters of Credit or Reimbursement Obligations with respect thereto outstanding) and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement or resignation shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank. From and after the effective date of any such replacement or resignation, (i) any successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement or resignation of an Issuing Bank hereunder, the replaced or resigning Issuing Bank shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement or resignation, but shall not be required to issue additional Letters of Credit.
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(l) Cash Collateral Account. At any time and from time to time (i) after the occurrence and during the continuance of an Event of Default, the Administrative Agent, at the direction or with the consent of the Required Lenders, may require the Borrower, to deliver to the Administrative Agent such amount of cash as is equal to 103% of the aggregate Stated Amount of all Letters of Credit at any time outstanding (whether or not any beneficiary under any Letter of Credit shall have drawn or be entitled at such time to draw thereunder) and (ii) to the extent any amount of a required prepayment under Section 2.07(b)(i) remains after prepayment of all outstanding Loans and Letter of Credit Obligations and termination of the Commitments, as contemplated by Section 2.07(d), the Administrative Agent will retain such amount as may then be required to be retained, such amounts in each case under clauses (i) and (ii) above to be held by the Administrative Agent in a Cash Collateral Account. The Borrower hereby grants (or, if registration thereof is required in any applicable jurisdiction, shall grant) to the Administrative Agent, for the benefit of the Issuing Banks and the Lenders, a Lien upon and security interest in the Cash Collateral Account and all amounts held therein from time to time as security for Letter of Credit Usage, and for application to the Borrower’s Letter of Credit Obligations as and when the same shall arise. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest on the investment of such amounts in Cash Equivalents, which investments shall be made at the direction of the Borrower (unless an Event of Default shall have occurred and be continuing, in which case the determination as to investments shall be made at the option and in the discretion of the Administrative Agent), amounts in the Cash Collateral Account shall not bear interest. Interest and profits, if any, on such investments shall accumulate in such account. In the event of a drawing, and subsequent payment by the applicable Issuing Bank, under any Letter of Credit at any time during which any amounts are held in the Cash Collateral Account, the Administrative Agent will deliver to such Issuing Bank an amount equal to the Reimbursement Obligation created as a result of such payment plus any additional amount payable hereunder in respect of any Reimbursement Obligation denominated in an Alternative Currency (or, if the amounts so held are less than such Reimbursement Obligation, all of such amounts) to reimburse such Issuing Bank therefor. Any amounts remaining in the Cash Collateral Account after the expiration of all Letters of Credit and reimbursement in full of each Issuing Bank for all of its obligations thereunder shall be held by the Administrative Agent, for the benefit of the Borrower, to be applied against the Obligations in such order and manner as the Administrative Agent may direct. If the Borrower is required to provide Cash Collateral pursuant to this Section 2.04(l), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower on demand, provided that after giving effect to such return (A) the sum of (1) the aggregate principal dollar amount of all Revolving Loans outstanding at such time and (2) the aggregate Letter of Credit Usage at such time would not exceed the aggregate Revolving Commitments at such time and (B) no Event of Default shall have occurred and be continuing at such time. If the Borrower is required to provide Cash Collateral pursuant to Section 2.07(b), as contemplated by Section 2.07(d), such amount shall be returned to the Borrower on demand; provided that, after giving effect to such return, all outstanding Letters of Credit shall have expired and each Issuing Bank shall have been reimbursed in full for all of its obligations thereunder. If the Borrower is required to provide Cash Collateral as a result of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.
(m) Addition of an Issuing Bank. One or more Revolving Lenders (other than a Defaulting Lender) selected by the Borrower that agrees to act in such capacity and reasonably acceptable to the Administrative Agent may become an additional Issuing Bank hereunder pursuant to a written agreement in form and substance reasonably satisfactory to the Administrative Agent among the Borrower, the Administrative Agent and such Revolving Lender. The Administrative Agent shall notify the Revolving Lenders of any such additional Issuing Bank.
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SECTION 2.05 Conversion/Continuation.
.
(a)
Each conversion of Loans from one Type to another, and each continuation of EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may only be given in writing; provided that Revolving Loans denominated in an Alternative Currency may not be converted
into Base Rate Loans. Each such notice must be received by the Administrative Agent not later than 1:00 p.m. (New York City time, in the
case of Loans denominated in Dollars, or London time, in the case of Loans denominated in an Alternative Currency (other
than Canadian Dollars)) on the requested date of any conversion of Eurocurrency RateTerm
SOFR Loans to Base Rate Loans and not later than 1:00 p.m. (New York City time) three Business Days prior to the requested
date of continuation of any EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans or any conversion of Base Rate Loans to Eurocurrency
RateTerm SOFR Loans. Each notice by the Borrower
pursuant to this Section 2.05(a) must be delivered to the Administrative Agent in the form of a Conversion/Continuation Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each conversion to or continuation of (x) Eurocurrency
RateTerm SOFR Loans shall be in a principal amount
of $500,000 or a whole multiple of $100,000 in excess thereof, if denominated in Dollars, (y)
EurocurrencyAlternative Currency
Term Rate Loans shall be in a principal amount of C$500,000 or a whole multiple of C$100,000
in excess thereof, if denominated in Canadian Dollars or (z) a Dollar Amount of $500,000 or a whole multiple of a Dollar
Amount of $100,000 in excess thereof if denominated in an Alternative Currency other than Canadian Dollars.
Each conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Conversion/Continuation Notice shall specify (i) whether the Borrower is requesting a conversion of Loans from one Type to the other,
or a continuation of EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans, (ii) the requested date of the conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the currency and principal
amount of Loans to be converted or continued, (iv) the Class of Loans to be converted or continued, (v) the Type of Loans to which such
existing Loans are to be converted, if applicable, and (vi) if applicable, the duration of the Interest Period with respect thereto. If
(x) with respect to any Eurocurrency RateTerm
SOFR Loans denominated in Dollars, the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and (y) with respect to any
EurocurrencyAlternative Currency
Term Rate Loans denominated in any Alternative Currency, the Borrower fails
to give a timely notice requesting a conversion or continuation, then the applicable tranche of Revolving Loans shall be converted to
a Eurocurrencyan Alternative
Currency Term Rate Loan with an Interest Period of one month. Any such automatic conversion or continuation pursuant to the
immediately preceding sentence shall be effective as of the last day of the Interest Period then in effect with respect to the applicable
EurocurrencyTerm SOFR Loans
or Alternative Currency Term Rate Loans. If the Borrower requests a conversion to, or continuation of EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans in any such Conversion/Continuation Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated
in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.
(b) Following receipt of a Conversion/Continuation Notice, the Administrative Agent shall promptly notify each applicable Lender of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation of Loans described in Section 2.05(a).
(c)
Except as otherwise provided herein, a EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan may be continued or converted only on the last day of an Interest Period for
such EurocurrencyTerm SOFR
Loan or Alternative Currency Term Rate Loan, as applicable.
Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent or the Required Lenders may require by
notice to the Borrower that no Loans denominated in Dollars may be converted to or continued as Eurocurrency
RateTerm SOFR Loans. This Section shall not apply
to Swing Line Loans or Protective Advances, which may not be converted or continued.
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SECTION 2.06 Availability. Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s Pro Rata Share of such Borrowing, the Administrative Agent may assume that such Lender has made such Pro Rata Share available to the Administrative Agent on the date of such Borrowing, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and the Borrower severally agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent at (a) in the case of the Borrower, the interest rate applicable at the time to the applicable Loans comprising such Borrowing and (b) in the case of such Lender, the Overnight Rate plus any administrative, processing, or similar fees customarily charged by the Administrative Agent in accordance with the foregoing. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 2.06 shall be conclusive in the absence of manifest error. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s applicable Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
SECTION 2.07 Prepayments.
.
(a) Optional.
(i) The Borrower may, upon notice to the Administrative Agent in the form of a Prepayment Notice, at any time or from time to time, voluntarily prepay the Loans in whole or in part without premium or penalty; provided that:
(A)
such Prepayment Notice must be received by the Administrative Agent (1) not later than 1:00 p.m.
(New York City time, in the case of Loans denominated in Dollars or Canadian Dollars,
or London time, in the case of Loans denominated in an Alternative Currency (other than Canadian Dollars))
three Business Days prior to any date of prepayment of Eurocurrency RateTerm
SOFR Loans or Alternative Currency Loans, (2) not later than 1:00 p.m. (New York City time) one Business Day prior to any date
of prepayment of Base Rate Loans and (3) not later than 1:00 p.m. (New York City time) one Business Day prior to any date of prepayment
of Swing Line Loans or Protective Advances;
(B)
any prepayment of Eurocurrency Rate Loans (x) denominated
in DollarsTerm SOFR Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding,
(y) Alternative Currency Loans denominated in Canadian Dollars shall
be in a principal amount of C$1,000,000 or a whole multiple of C$100,000 in excess thereof or, if less, the entire principal amount thereof
then outstanding and (z) Alternative Currency Loans denominated
in anany other
Alternative Currency, shall be in a principal Dollar Amount of $1,000,000 or a whole multiple of the Dollar Amount of $100,000 in excess
thereof or, if less, the entire principal amount thereof then outstanding; and
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(C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding (it being understood that Base Rate Loans shall be denominated in Dollars only).
Each Prepayment Notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid, and the payment amount specified in each Prepayment Notice shall be due and payable on the date specified therein. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of a Prepayment Notice and of the amount of such Lender’s Pro Rata Share of such prepayment; provided, “non-consenting” Lenders may be repaid on a non-pro rata basis in connection with an Extension Offer and Disqualified Lenders may be repaid on a non-pro rata basis in accordance with Section 11.27. Any prepayment of Loans shall be subject to Section 2.07(c). Revolving Loans, Incremental Revolving Loans and Swing Line Loans prepaid pursuant to this subsection (a) may be reborrowed, subject to the terms and conditions of this Agreement.
(ii) Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind, in whole or in part, any notice of prepayment under Section 2.07(a)(i), if such prepayment would have resulted from a refinancing of all or a portion of the applicable Facility which refinancing shall not be consummated or shall otherwise be delayed.
(iii) [Reserved].
(iv) [Reserved].
(b) Mandatory.
(i) If at any time the Total Utilization of Revolving Commitments exceeds the Line Cap, then within one Business Day thereof, the Borrower shall prepay first, the Swing Line Loans and second, the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Commitments shall no longer exceed the Line Cap; provided that, to the extent such excess amount is greater than the aggregate principal dollar amount of Swing Line Loans and Revolving Loans outstanding immediately prior to the application of such prepayment, the amount so prepaid shall be retained by the Administrative Agent and held in the Cash Collateral Account as cover for Letter of Credit Usage, as more particularly described in Section 2.04(l), and thereupon such cash shall be deemed to reduce the aggregate Letter of Credit Usage by an equivalent amount; provided, further, that (1) if the circumstances described in this clause (i) are the result of the imposition of or increase in a Reserve, the Borrower shall not be required to make the initial prepayment or deposit until the fifth Business Day following the date on which Administrative Agent notifies the Borrower of such imposition or increase and (2) the Letter of Credit Usage may not be reduced to less than zero.
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(ii) At all times after the occurrence and during the continuance of a Cash Dominion Period and notification thereof by the Administrative Agent to the Borrower (subject to the provisions of Sections 2.19, 9.03 and to the terms of the Security Agreement), on each Business Day, at or before 11:00 a.m., New York City time, the Administrative Agent shall apply all immediately available funds credited to the Administrative Agent Account or otherwise received by Administrative Agent for application to the Obligations or Secured Obligations (in the case of clause sixth and clause eighth below), first, to payment of any fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 11.04 and amounts payable under Article III) payable to the Administrative Agent and Collateral Agent in their capacity as such; second, to payment in full of Unfunded Advances/Participations (the amounts so applied to be distributed between or among, as applicable, the Administrative Agent and the Issuing Banks pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution); third, to payment of fees, indemnities and other amounts (other than principal and interest and Letter of Credit fees) payable to the Lenders and the Issuing Banks (including Attorney Costs payable under Section 11.04 and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause third payable to them; fourth, to payment of accrued and unpaid Letter of Credit fees and interest on the Loans and Letter of Credit Usage, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause fourth held by them; fifth, to pay the principal of Protective Advances; sixth, ratably, (a) to payment of unpaid principal of the Loans (other than Protective Advances) and the Letter of Credit Usage, (b) to the extent a Bank Products Reserve has been established therefor by the Administrative Agent in accordance with the terms hereof, to pay the unpaid Reserved Secured Hedge Obligations, including the cash collateralization of such Reserved Secured Hedge Obligations, (c) to the extent a Bank Products Reserve has been established therefor by the Administrative Agent in accordance the terms hereof, to pay the unpaid Reserved Secured Cash Management Obligations, (d) to Cash Collateralize Letters of Credit (to the extent not otherwise Cash Collateralized pursuant to the terms of this Agreement) (in an amount equal to 103% of the maximum face amount of all outstanding Letters of Credit) and to further permanently reduce the Revolving Commitments by the amount of such Cash Collateralization, ratably among the Secured Parties in proportion to the respective amounts described in this clause sixth held by them; provided that (i) any such amounts applied pursuant to the foregoing subclause (d) shall be paid to the Administrative Agent for the ratable account of the Issuing Banks to Cash Collateralize such Letters of Credit, (ii) subject to Section 2.04 and Section 2.19, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to this clause sixth shall be applied to satisfy drawings under such Letters of Credit as they occur and (iii) upon the expiration of any Letter of Credit, the pro rata share of Cash Collateral attributable to such expired Letter of Credit shall be applied by the Administrative Agent in accordance with the priority of payments set forth in this Section 2.07(b)(ii); seventh, ratably to pay other Obligations then due (other than Obligations in respect of Secured Cash Management Services and Secured Hedge Agreements), until paid in full; eighth, ratably to pay other Obligations in respect of the Secured Cash Management Services and Secured Hedge Agreements, until paid in full; ninth, to the payment of all other Obligations of the Loan Parties (other than contingent indemnification obligations for which no claim has yet been made) that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and last, as the Borrower may direct.
(c)
Interest, Funding Losses, Etc. All prepayments under this Section 2.07 shall be accompanied
by all accrued interest thereon, together with, in the case of any such prepayment of a EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan on a date prior to the last day of an Interest Period therefor, any amounts
owing in respect of such EurocurrencyTerm
SOFR Loan or Alternative Currency Term Rate Loan pursuant to Section 3.05.
(d) Application of Prepayment Amounts. In the event that the obligation of the Borrower to prepay the Loans shall arise pursuant to subsection (b)(i) above,
(i) first, the Borrower shall prepay the outstanding principal amount of the Swing Line Loans, without a corresponding permanent reduction to the Revolving Commitments,
(ii) second, to the extent of any excess remaining after the prepayment as provided in clause (i) above, the Borrower shall pay any outstanding Reimbursement Obligations in respect of Letters of Credit,
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(iii) third, to the extent of any excess remaining after application as provided in clauses (i) and (ii) above, the Borrower shall prepay the outstanding principal amount of the Revolving Loans, without a corresponding permanent reduction to the Revolving Commitments, and
(iv) fourth, to the extent of any excess remaining after application as provided in clauses (i), (ii) and (iii) above, thereafter the Borrower shall Cash Collateralize the Letter of Credit Usage pursuant to Section 2.04(l).
Each payment or prepayment pursuant to the provisions of Section
2.07(b) shall be applied ratably among the Lenders of each Class holding the Loans being prepaid, in proportion to the principal amount
held by each, and shall be applied as among the Revolving Loans being prepaid, (A) first, to prepay all Base Rate Loans and Alternative
Currency Daily Rate Loans on a pro rata basis and (B) second, to the extent of any excess remaining after application as provided
in clause (A) above, to prepay all EurocurrencyTerm
SOFR Loans and Alternative Currency Term Rate Loans (and as among EurocurrencyTerm
SOFR Loans and Alternative Currency Term Rate Loans, (1) first to prepay those EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans, if any, having Interest Periods ending on the date of such prepayment,
and (2) thereafter, to the extent of any excess remaining after application as provided in clause (1) above, to prepay any EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans in the order of the expiration dates of the Interest Periods applicable
thereto).
SECTION 2.08 Termination or Reduction of Commitments.
.
(a) Optional. The Borrower may, upon written notice to the Administrative Agent, terminate the unused Commitments of any Class, or from time to time permanently reduce the unused Commitments of any Class, in each case without premium or penalty; provided that (i) any such notice shall be received by the Administrative Agent one Business Day prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $1,000,000 in excess thereof or, if less, the entire amount thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.07, the Total Utilization of Revolving Commitments would exceed the Line Cap, (B) the Letter of Credit Sublimit if, after giving effect thereto, (1) the Letter of Credit Usage not fully Cash Collateralized hereunder at 103% of the maximum face amount of any such Letters of Credit would exceed the Letter of Credit Sublimit or (2) the Letter of Credit Usage with respect to Letters of Credit issued by an applicable Issuing Bank not fully Cash Collateralized hereunder at 103% of the maximum face amount of any such Letters of Credit would exceed the amount of such Issuing Bank’s Letter of Credit Percentage of the Letter of Credit Sublimit or (C) the Swing Line Sublimit, if after giving effect to any concurrent payment of Swing Line Loans in accordance with Section 2.07, the Total Utilization of Revolving Commitments with respect to Swing Line Loans would exceed the Swing Line Sublimit. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Commitments if such termination would have resulted from a refinancing of all or a portion of the applicable Facility, which refinancing shall not be consummated or otherwise shall be delayed.
(b) Mandatory.
(i) the Revolving Commitments shall terminate on the Revolving Commitment Termination Date.
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(ii) If after giving effect to any reduction or termination of Revolving Commitments under this Section 2.08, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Revolving Commitments at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.
(c) Effect of Termination or Reduction. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Pro Rata Share of Commitments of such Class.
SECTION 2.09 Repayment of Loans.
.
(a) The Borrower shall repay to the Administrative Agent (i) for the ratable account of the Appropriate Lenders the outstanding principal amount of Revolving Loans on the Revolving Commitment Termination Date and (ii) the then unpaid amount of each Protective Advance on the earliest of (A) the Revolving Commitment Termination Date or, if applicable, the Latest Maturity Date, and (B) 45 days (or such longer period as may be consented to by the Administrative Agent) after such Protective Advance is made; provided that on each date that a Revolving Loan is made while any Protective Advance is outstanding, the Borrower shall repay all Protective Advances with the proceeds of such Revolving Loan.
(b) The Borrower shall repay to the Swing Line Lender (or, to the extent required by Section 2.03(c), to the Administrative Agent for the account of the Revolving Lenders) each Swing Line Loan made by the Swing Line Lender on the earlier to occur of (i) the date seven (7) Business Days after such Swing Line Loan is made and (ii) the Maturity Date of the Revolving Loans; provided, on each date that a Revolving Loan is made, the Borrower shall repay all Swing Line Loans then outstanding. At any time there shall exist a Defaulting Lender that is a Revolving Lender, immediately upon the request of the Swing Line Lender, the Borrower shall repay the outstanding Swing Line Loans made by the Swing Line Lender to the Borrower in an amount sufficient to eliminate any Fronting Exposure in respect of the Swing Line Loans.
SECTION 2.10 Interest.
.
(a)
Subject to the provisions of Section 2.10(b), (i) each Eurocurrency
Term SOFR Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to Term SOFR for
such Interest Period plus the Applicable Rate, (ii) each
Alternative Currency Term Rate Loan shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to (x) with respect to a Eurocurrency Rate
Loan denominated in Dollars, the rate per annum equal to the applicable Adjusted Eurocurrencythe
Alternative Currency Term Rate for such Interest Period plus the Applicable Rate, (y)
with respect to a Eurocurrency Rate Loan denominated in Canadian Dollars, the rate per annum equal to the CDOR Rate for such Interest
Period plus the Applicable Rate, (z) with respect to a Eurocurrency Rate Loan denominated
in an Alternative Currency other than Canadian Dollars, the rate per annum equal to the rate based on clause (c) of the definition
of “Eurocurrency Rate” for such Interest Period plus
the Applicable Rate, (ii)iii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate, (iv) each Alternative
Currency Daily Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate
per annum equal to the Alternative Currency Daily Rate plus the Applicable Rate and (iiiv)
each Swing Line Loan denominated in Dollars and each Protective
Advance shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.
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(b) 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 shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(c) If any amount (other than principal of any Loan) payable by the Borrower 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 (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code or any other Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender) such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(d) Accrued and unpaid interest on the principal amount of all outstanding past due Obligations (including interest on past due interest) shall be due and payable upon demand (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code or any other Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender).
(e)
Interest on each Loan shall be due and payable (i) with respect to Base Rate
Loans and Alternative Currency Daily Rate Loans, in arrears on each Interest Payment Date applicable thereto and at such other
times as may be specified herein and (ii) with respect to EurocurrencyTerm
SOFR Loans and Alternative Currency Term Rate Loans, at the end of each Interest Period, and, in any event, every three months.
Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement
of any case or proceeding under the Bankruptcy Code or any other Debtor Relief Law.
(f)
The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate
applicable to any Interest Period for any EurocurrencyTerm
SOFR Loans or Alternative Currency Term Rate Loans upon determination of such interest rate. The determination of the
Adjusted Eurocurrency Rate and the EurocurrencyTerm SOFR and
the Alternative Currency Term Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any
time when Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the “prime
rate” used in determining the Base Rate promptly following the public announcement of such change.
(g) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect unless otherwise agreed between the Borrower and the Administrative Agent; provided that after the establishment of any new Class of Loans pursuant to an Extension, the number of Interest Periods otherwise permitted by this Section 2.10(g) shall increase by three Interest Periods for each applicable Class so established.
SECTION 2.11 Fees.
.
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(a) The Borrower shall pay to the Agents such fees as shall have been separately agreed upon in writing (including pursuant to any fee letter executed with the Agents in connection with the Facilities) in the amounts and at the times so specified. Such fees shall be fully earned when due and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).
(b) The Borrower agrees to pay to Lenders having Revolving Exposure:
(i) commitment fees for the period from and including the Closing Date to and including the Revolving Commitment Termination Date equal to (A) the average of the daily difference between (1) the Revolving Commitments and (2) the sum of (I) the aggregate principal amount of all outstanding Revolving Loans plus (II) the Letter of Credit Usage, times (B) the Applicable Commitment Fee; and
(ii)
letter of credit fees with respect to all Letters of Credit (other than trade Letters of Credit)
(the “L/C Fee”) equal to the (A) Applicable Rate for Revolving Loans that are Eurocurrency
RateTerm SOFR Loans or Alternative Currency Loans
(or, with respect to trade Letters of Credit, 50% of the Applicable Rate for Revolving Loans that are Eurocurrency
RateTerm SOFR Loans or Alternative Currency Loans),
times (B) the maximum amount available to be drawn under all Letters of Credit (regardless of whether any conditions for
drawing could then be met and determined as of the close of business on any date of determination and whether or not such maximum amount
is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit).
All fees referred to in this Section 2.11(b) shall be paid to the Administrative Agent at the Administrative Agent’s Office and upon receipt, the Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof. In addition, for purposes of calculating the commitment fees referred to in clause (b)(i) only, no portion of the Revolving Commitments shall be deemed utilized as a result of outstanding Swing Line Loans.
(c) The Borrower agrees to pay directly to the applicable Issuing Bank, for its own account, the following fees:
(i) a fronting fee to be agreed by the Borrower and the applicable Issuing Bank (not to exceed 0.125% per annum) times the maximum Dollar Amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) determined as of the close of business on any date of determination; and
(ii) such documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with such Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be, which fees, costs and charges shall be payable to such Issuing Bank within three Business Days after its demand therefor and are nonrefundable.
Each payment of fees required above under this clause (c) on any Letters of Credit, whether denominated in Dollars or an Alternative Currency, shall be made in Dollars.
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(d) All fees referred to in Sections 2.11(b) and 2.11(c)(i) shall be payable quarterly in arrears on the first day following the last day of each fiscal quarter of each year during the Revolving Commitment Period, commencing with the first day following the first full fiscal quarter ending after the Closing Date, and on the Revolving Commitment Termination Date; provided that any such fees accruing after the Revolving Commitment Termination Date shall be payable on demand.
(e) The Borrower agrees to pay to the Administrative Agent for its own account the fees payable in the amounts and at the times separately agreed upon.
SECTION 2.12
Computation of Interest and Fees. All computations of interest for Base Rate Loans calculated
by reference to the “prime rate” or Federal Funds Rate shall be made on the basis of a year of 365 days or 366 days, as the
case may be (or 365 days for Canadian Prime Rate Loans denominated
in Canadian Dollars), and actual days elapsed.,
or, in the case of interest in respect of Loans denominated in Alternative Currencies as to which market practice differs from the foregoing,
in accordance with such market practice. All other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made
shall, subject to Section 2.10(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate
or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. For the purposes of the Interest Act (Canada),
the yearly rate of interest to which any rate calculated on the basis of a period of time different from the actual number of days in
the year (360 days, for example) is equivalent is the stated rate multiplied by the actual number of days in the year (365 or 366, as
applicable) and divided by the number of days in the shorter period (360 days, in the example) and the Canadian Loan Parties acknowledge
that there is a material distinction between the nominal and effective rates of interest and that they are capable of making the calculations
necessary to compare such rates and that the calculations herein are to be made using the nominal rate method and not on any basis that
gives effect to the principle of deemed reinvestment of interest. Each of the Canadian Loan Parties confirms that it understands and is
able to calculate the rate of interest applicable to the Obligations based on the methodology for calculating per annum rates provided
in this Agreement. Each of the Canadian Loan Parties irrevocably agrees not to plead or assert, whether by way of defense or otherwise,
in any proceeding relating to this Agreement or any other Loan Document, that the interest payable under this Agreement and the calculation
thereof has not been adequately disclosed to the Canadian Loan Parties as required pursuant to section 4 of the Interest Act (Canada).
SECTION 2.13 Evidence of Indebtedness.
.
(a) The Borrowings made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender. The accounts or records maintained by each Lender shall be prima facie evidence absent manifest error of the amount of the Borrowings made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the entries in the Register, the entries in the Register shall control in the absence of manifest error.
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(b) Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence the relevant Class of such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
SECTION 2.14 Payments Generally.
.
(a) All payments to be made by the Borrower shall be made on the date when due, in immediately available funds without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office for payment and in Same Day Funds not later than 1:00 p.m. (New York City time, in the case of any payment in Dollars or Canadian Dollars, or London time, in the case of any payment in an Alternative Currency (other than Canadian Dollars)) on the date specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency (other than Canadian Dollars), the Borrower shall make such payment in Dollars in the Dollar Amount of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office; provided that the proceeds of any borrowing of Revolving Loans to finance the reimbursement of a drawn Letter of Credit as provided in Section 2.04(c) shall be remitted by the Administrative Agent to the applicable Issuing Bank. All payments received by the Administrative Agent after 1:00 p.m. (New York City time, in the case of any payment in Dollars or Canadian Dollars, or London time, in the case of any payment in an Alternative Currency (other than Canadian Dollars)) shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. At all times during which a Cash Dominion Period exists, solely for purposes of determining the Total Utilization of Revolving Commitments, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c)
Unless the Borrower has notified the Administrative Agent, prior to the date any payment is required
to be made by it to the Administrative Agent hereunder for the account of any Lender or any Issuing Bank, as applicable, that the Borrower
will not make such payment, the Administrative Agent may assume that the Borrower has timely made such payment and may (but shall not
be so required to), in reliance thereon, make available a corresponding amount to such Lender or such Issuing Bank. If
and to the extent that such payment wasWith respect to any
payment that the Administrative Agent makes for the account of the Lenders or any Issuing Bank hereunder as to which the Administrative
Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred
to as the “Rescindable Amount”): (1) the Borrower has not in fact made tosuch
payment; (2) the Administrative Agent in Same Day Funds, then such Lender or such Issuing
Bank, as applicable, shall forthwith on demandhas made a payment
in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise
erroneously made such payment; then each of the Lenders or the applicable Issuing Banks, as the case may be, severally agrees to
repay to the Administrative Agent the portion of such assumed payment that was made availableforthwith
on demand the Rescindable Amount so distributed to such Lender or such Issuing Bank,
in Same Day Funds, together with interest thereon in
respect of, for each day from and including the
date such amount was made availableis
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 to such Lender or such Issuing Bank, as applicable,
to the date such amount is repaid to the Administrative Agent in Same Day Funds at the applicable Overnight Rate from time to time in
effectin accordance with banking industry rules on interbank
compensation. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (c)
shall be conclusive, absent manifest error.
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(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the applicable conditions to the Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit, Swing Line Loans and Protective Advances and to make payments pursuant to Section 10.07 are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 9.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of such of the outstanding Loans or other Obligations then owing to such Lender.
(h) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.03(c), 2.04(c), 2.06, 2.15 or 10.07, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swing Line Lender or the Issuing Banks, as applicable, to satisfy such Lender’s obligations to the Administrative Agent, the Swing Line Lender and the Issuing Banks until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
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SECTION 2.15
Sharing of Payments, Etc..
If, other than as expressly provided elsewhere herein, any Lender shall obtain payment in respect of any principal of or interest
on account of the Loans of a particular Class made by it (whether voluntary, involuntary, through the exercise of any right of setoff,
or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or
such subparticipations in the participations in L/C obligations, Swing Line Loans or Protective Advances held by them, as the case may
be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations,
as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered
from the purchasing Lender under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered
into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each relevant Lender shall repay
to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The provisions of this paragraph shall not be construed to apply to (A) any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement as in effect from time to time (including Section 11.07),
(B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee
or participant permitted hereunder or (C) any payment received by such Lender not in its capacity as a Lender. The Borrower agrees that
any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its
rights of payment (including the right of setoff, but subject to Section 11.09) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.15
and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant
to this Section 2.15 shall from and after such purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
SECTION 2.16 Incremental Borrowings.
.
(a) Notice. At any time and from time to time, on one or more occasions, the Borrower may, by notice to the Administrative Agent, increase the aggregate principal amount of the Revolving Commitments (the “Incremental Revolving Facilities” and the revolving loans and other extensions of credit made thereunder, the “Incremental Revolving Loans”; each such increase, an “Incremental Facility” and the loans or other extensions of credit made thereunder, the “Incremental Loans”).
(b) Ranking. Incremental Facilities will rank pari passu in right of payment with the Revolving Commitments and will be secured by the Collateral by Liens on a pari passu basis to the Liens that secure the Revolving Commitments.
(c) Size and Currency. The aggregate principal amount of Incremental Facilities on any date commitments with respect thereto are first received, assuming such commitments are fully drawn only on the date of receipt thereof, will not exceed, an amount equal to, the Incremental Amount. Each Incremental Facility will be in an integral multiple of $1,000,000 and in an aggregate principal amount that is not less than $5,000,000 (or such lesser minimum amount approved by the Administrative Agent in its reasonable discretion); provided that such amount may be less than such minimum amount or integral multiple amount if such amount represents all the remaining availability under the Incremental Amount at such time. Any Incremental Facility shall be denominated in Dollars but may be borrowed in Alternative Currencies in accordance with the terms of the Revolving Facility.
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(d) Incremental Lenders. Incremental Facilities may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to make, or provide commitments with respect to, an Incremental Loan) or by any Additional Lender. While existing Lenders may (but are not obligated to unless invited to and so elect) participate in any syndication of an Incremental Facility and may (but are not obligated to unless invited to and so elect) become lenders with respect thereto, the existing Lenders will not have any right to participate in any syndication of, and will not have any right of first refusal or other right to provide all or any portion of, any Incremental Facility or Incremental Loan except to the extent the Borrower and the arrangers thereof, if any, in their discretion, choose to invite or include any such existing Lender (which may or may not apply to all existing Lenders and may or may not be pro rata among existing Lenders). Final allocations in respect of Incremental Facilities will be made by the Borrower together with the arrangers thereof, if any, in their discretion, on the terms permitted by this Section 2.16; provided that the lenders providing the Incremental Facilities will be reasonably acceptable to the (i) Borrower, (ii) the Administrative Agent, (iii) each Issuing Bank and (iv) the Swing Line Lender (except that, in the case of clauses (ii), (iii) and (iv) only to the extent such Person otherwise would have a consent right to an assignment of such loans or commitments to such lender, such consent not to be unreasonably withheld, conditioned or delayed).
(e) Incremental Facility Amendments; Use of Proceeds. Each Incremental Facility will become effective pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Person providing such Incremental Facility and the Administrative Agent. Incremental Amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, advisable or appropriate, in the reasonable opinion of the Borrower in consultation with the Administrative Agent, to effect the provisions of this Section 2.16. The Administrative Agent will promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement and the other Loan Documents, as applicable, will be amended to the extent necessary to reflect the existence and terms of the Incremental Facility and the Incremental Loans evidenced thereby. This Section 2.16 shall supersede any provisions in Section 2.15 or 11.01 to the contrary. The Borrower may use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(f) Conditions. The availability of Incremental Facilities under this Agreement will be subject solely to the following conditions, subject, for the avoidance of doubt, to any condition expressly set forth in Section 1.08, and measured on the date of the receipt of commitments under (assuming such commitments are fully drawn only on the date of receipt) such Incremental Facility:
(i) no Event of Default shall have occurred and be continuing or would result therefrom; provided that the condition set forth in this clause (i) may be waived or not required (other than with respect to Specified Events of Default) by the Persons providing such Incremental Facilities if the proceeds of the initial Borrowings under such Incremental Facilities will be used to finance, in whole or in part, any Permitted Investment or other Acquisition Transaction;
(ii) the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility; provided that the condition set forth in this clause (ii) may be waived or not required (other than with respect to (A) the Specified Representations and (B) the representation and warranty contained in Section 5.20) by the Persons providing such Incremental Facilities if the proceeds of the initial Borrowings under such Incremental Facilities will be used to finance, in whole or in part, a Permitted Investment; and
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(iii) if the Additional Lenders providing such Incremental Facility require such information as a condition to providing such Incremental Facility, the Lenders shall have received at least three Business Days prior to the closing date of such Incremental Facility all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten Business Days prior to the closing date of such Incremental Facility required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) Terms. Each Incremental Amendment will set forth the amount and terms of the relevant Incremental Facility. Each Incremental Facility will be documented as an increase to the Revolving Commitments and shall be on terms identical to those applicable to the Revolving Facility except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders providing such Incremental Revolving Facility.
(h) [Reserved].
(i) Adjustments to Revolving Loans. Upon each increase in the Revolving Commitments pursuant to this Section 2.16, unless an Event of Default shall have occurred and be continuing,
(i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each lender providing a portion of such increase (each an “Incremental Revolving Facility Lender”), and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit, Swing Line Loans and Protective Advances such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (1) participations hereunder in Letters of Credit, (2) participations hereunder in Swing Line Loans and (3) participations hereunder in Protective Advances, in each case held by each Revolving Lender will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Revolving Lender’s Revolving Commitments; and
(ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of Incremental Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 3.05.
SECTION 2.17 [Reserved].
.
SECTION 2.18 Extensions of Loans.
.
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(a) Extension Offers. Pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders holding Loans and/or Commitments of a particular Class with a like Maturity Date, the Borrower may extend such Maturity Date and otherwise modify the terms of such Loans and/or Commitments pursuant to the terms set forth in an Extension Offer (each, an “Extension”). Each Extension Offer will specify the minimum amount of Loans and/or Commitments with respect to which an Extension Offer may be accepted, which (x) with respect to Loans and/or Commitments denominated in Dollars, will be an integral multiple of $1,000,000 and an aggregate principal amount that is not less than $5,000,000, (y) with respect to Loans and/or Commitments denominated in Canadian Dollars, will be an integral multiple of C$1,000,000 and an aggregate principal amount that is not less than C$5,000,000 or (z) with respect to Loans and/or Commitments denominated in any Alternative Currency (other than Canadian Dollars), will be an integral multiple of the Dollar Amount of $1,000,000 and an aggregate principal amount that is not less than the Dollar Amount of $5,000,000 or, in each case, if less, (i) the aggregate principal amount of such Class of Loans outstanding or (ii) such lesser minimum amount as is approved by the Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed. Extension Offers will be made on a pro rata basis to all Lenders holding Loans and/or Commitments of a particular Class with a like Maturity Date. If the aggregate outstanding principal amount of such Loans (calculated on the face amount thereof) and/or Commitments in respect of which Lenders have accepted an Extension Offer exceeds the maximum aggregate principal amount of Loans and/or Commitments offered to be extended pursuant to such Extension Offer, then the Loans and/or Commitments of such Lenders will be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer. There is no requirement that any Extension Offer or Extension Amendment (defined as follows) be subject to any “most favored nation” pricing provisions. The terms of an Extension Offer shall be determined by the Borrower, and Extension Offers may contain one or more conditions to their effectiveness as determined by the Borrower, including a condition that a minimum amount of Loans and/or Commitments of any or all applicable tranches be tendered.
(b) Extension Amendments. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (an “Extension Amendment”) as may be necessary, advisable or appropriate in order to establish new tranches in respect of Extended Loans and Extended Commitments and such amendments as permitted by clause (c) below as may be necessary, advisable or appropriate in the reasonable opinion of the Borrower, in consultation with the Administrative Agent, in connection with the establishment of such new tranches of Loans or Commitments. This Section 2.18 shall supersede any provisions in Section 2.15 or 11.01 to the contrary. Except as otherwise set forth in an Extension Offer, there will be no conditions to the effectiveness of an Extension Amendment. Extensions will not constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(c) Terms of Extension Offers and Extension Amendments. The terms of any Extended Loans and Extended Commitments will be set forth in an Extension Offer and as agreed between the Borrower and the Extending Lenders accepting such Extension Offer; provided that:
(i) the final maturity date of such Extended Loans and Extended Commitments will be no earlier than the Latest Maturity Date applicable to the Loans and/or Commitments subject to such Extension Offer;
(ii) [reserved];
(iii) [reserved]; and
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(iv) except as to (x) maturity, interest, fees (including any commitment, arrangement, upfront or similar fees) and (y) other terms applicable after the Latest Maturity Date of the Loans that are not Extended Revolving Loans, all terms of any Extended Revolving Loans or Extended Revolving Commitments shall be on terms and pursuant to documentation applicable to the Revolving Facility.
Any Extended Loans will constitute a separate tranche of Revolving Loans from the Revolving Loans held by Lenders that did not accept the applicable Extension Offer.
(d) Extension of Revolving Commitments. In the case of any Extension of Revolving Commitments and/or Revolving Loans, the following shall apply:
(i) all borrowings and all prepayments of Revolving Loans shall continue to be made on a ratable basis among all Revolving Lenders, based on the relative amounts of their Revolving Commitments, until the repayment of the Revolving Loans attributable to the non-extended Revolving Commitments on the relevant Maturity Date;
(ii) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit, Swing Line Loan or Protective Advance as between the Revolving Commitments of such extended tranche and the remaining non-extended Revolving Commitments shall be made on a ratable basis in accordance with the relative amounts thereof until the Maturity Date relating to such non-extended Revolving Commitments has occurred, it being understood that the obligations of any Issuing Bank or Swing Line Lender may not be extended beyond the Maturity Date relating to the non-extended Revolving Commitments pursuant to this Section 2.18 without the consent of such Issuing Bank or Swing Line Lender;
(iii) no termination of extended Revolving Commitments and no repayment of extended Revolving Loans accompanied by a corresponding permanent reduction in extended Revolving Commitments shall be permitted unless such termination or repayment (and corresponding reduction) is accompanied by at least a pro rata termination or permanent repayment (and corresponding pro rata permanent reduction), as applicable, of each other tranche of Revolving Loans and Revolving Commitments (or each other tranche of Revolving Commitments and Revolving Loans shall have otherwise been terminated and repaid in full);
(iv) at no time shall there be more than five different tranches of Revolving Commitments.
If the Total Utilization of Revolving Commitments exceeds the Line Cap as a result of the occurrence of the Maturity Date with respect to any tranche of Revolving Commitments while an extended tranche of Revolving Commitments remains outstanding, the Borrower shall make such payments as are necessary in order to eliminate such excess on such Maturity Date.
(e) Required Consents. No consent of any Lender or any other Person will be required to effectuate any Extension, other than the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), the Borrower and the applicable Extending Lender. The transactions contemplated by this Section 2.18 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans on such terms as may be set forth in the relevant Extension Offer) will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.18 will not apply to any of the transactions effected pursuant to this Section 2.18.
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SECTION 2.19 Defaulting Lenders.
.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.09 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Bank and the Swing Line Lender hereunder; third, to Cash Collateralize each Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender with respect to outstanding Letters of Credit (in an amount equal to 103% of the maximum face amount of all outstanding Letters of Credit) or the Swing Line Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.19(d); fourth, as the Borrower may request (so long as no Event of Default shall have occurred and be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a Cash Collateral Account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) Cash Collateralize each Issuing Bank’s (in an amount equal to 103% of the maximum face amount of all outstanding Letters of Credit) or the Swing Line Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit or Swing Line Loans, as applicable, issued under this Agreement, in accordance with Section 2.19(d); sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit, Swing Line Loans and Protective Advances are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.19(a)(iii). 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 2.19(a)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(ii) Certain Fees.
(A) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.11(b) for any period during which that Lender is a Defaulting Lender; provided such Defaulting Lender shall be entitled to receive fees pursuant to Section 2.11(b)(ii) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the Stated Amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.04.
(B) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit, Swing Line Loans and Protective Advances that has been reallocated to such Non-Defaulting Lender pursuant to clause (iii) below, (2) pay to each Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.
(iii) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letters of Credit, Swing Line Loans and Protective Advances shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (A) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (B) such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 11.25, 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.
(iv) Cash Collateral. If the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, provide Cash Collateral pursuant to the requirements set forth in Section 2.19(d).
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent and the Swing Line Lender and each Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), 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 Loans and funded and unfunded participations in Letters of Credit, Swing Line Loans and Protective Advances to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.04) whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower, while that Lender was a Defaulting Lender; 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 having been a Defaulting Lender.
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(c) New Swing Line Loans/Letters of Credit. So long as any Revolving Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) no Issuing Bank shall be required to issue, extend or amend any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
(d) Cash Collateral. At any time that there shall exist a Defaulting Lender and Section 2.19(a)(iv) is applicable, within one Business Day following the written request of the Administrative Agent, any Issuing Bank (with a copy to the Administrative Agent) or the Swing Line Lender (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the applicable Issuing Bank’s Fronting Exposure, the Swing Line Lender’s Fronting Exposure and any outstanding Protective Advance, as the case may be, with respect to such Defaulting Lender (determined after giving effect to Section 2.04 and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(i) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit, Swing Line Loans and Protective Advances, to be applied pursuant to clause (ii) below. If at any time the Administrative Agent determines that the Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent, the Issuing Banks or the Lenders as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower 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 (after giving effect to any Cash Collateral provided by the Defaulting Lender).
(ii) Application. Notwithstanding anything to the contrary contained in this Agreement, (A) Cash Collateral provided under this Section 2.19 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein, (B) Cash Collateral provided under this Section 2.19 in respect of Swing Line Loans shall be applied to the satisfaction of the Defaulting Lender’s obligations to fund participations in respect of Swing Line Loans (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein and (C) Cash Collateral provided under this Section 2.19 in respect of Protective Advances shall be applied to the satisfaction of the Defaulting Lender’s obligations to fund participations in respect of Protective Advances (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
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(iii) Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s or the Swing Line Lender’s Fronting Exposure or applied to any such Defaulting Lender’s obligations to fund participations in respect of Protective Advances shall no longer be required to be held as Cash Collateral pursuant to this Section 2.19 following (A) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), (B) (I) the repayment in full of all Protective Advances by the Borrower or (II) the payment by such Defaulting Lender of its obligations to fund participations in respect of Protective Advances (including at the time of the termination of Defaulting Lender status of the applicable Lender) or (C) the determination by the Administrative Agent, the applicable Issuing Bank or the Swing Line Lender, as the case may be, that there exists excess Cash Collateral; provided that, subject to the other provisions of this Section 2.19, the Person providing Cash Collateral and the applicable Issuing Bank, the Swing Line Lender or, with respect to Protective Advances, the Administrative Agent, as the case may be, may agree that the Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations (including obligations to fund Protective Advances); provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
(e) Hedge Banks. So long as any Lender is a Defaulting Lender, such Lender shall not be a Hedge Bank with respect to any Secured Hedge Agreement entered into while such Lender was a Defaulting Lender.
SECTION 2.20 [Reserved].
.
SECTION 2.21 Judgment Currency.
.
(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder or under any other Loan Document in one currency into another currency, each party hereto and each Loan Party (and by its acceptance of its appointment in such capacity, each Lead Arranger) agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures in the relevant jurisdiction, the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of the Loan Parties in respect of any sum due to any party hereto or under any other Loan Document or any holder of the obligations owing hereunder or under any other Loan Document (the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction 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 Applicable Creditor in the Agreement Currency, the Borrower and each other Loan Party as a separate obligation and notwithstanding any such judgment, agrees to indemnify the Applicable Creditor against such loss. The obligations of the Loan Parties contained in this Section shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.
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SECTION 2.22 Reserves; Changes to Eligibility Criteria. The Administrative Agent may at any time and from time to time and only in the exercise of its Permitted Discretion establish new categories of Reserves or change eligibility criteria set forth in the definition of “Eligible Accounts Receivable” upon five Business Days’ prior written notice to the Borrower (which notice shall not be required at any time an Event of Default has occurred and is continuing), which notice shall include a reasonably detailed description of such new category of Reserve being established or change to any eligibility criteria set forth in the definition of “Eligible Accounts Receivable” (during which five Business Day period (x) the Administrative Agent shall, if requested, discuss any such Reserve or change with the Borrower and (y) the Borrower may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or change thereto no longer exists or exists in a manner that would result in the establishment of a lower Reserve or result in a lesser change thereto, in a manner and to the extent reasonably satisfactory to the Administrative Agent), establish and increase or decrease Reserves in accordance with the terms hereof; provided that, pending the expiration of such five Business Day period, no Borrowings may be made if such Borrowings would result in the Total Utilization of Revolving Commitments to exceed the Line Cap, calculated as if such proposed Reserve had been implemented. Notwithstanding any other provision of this Agreement to the contrary, (a) the establishment or increase of any Reserves or changes in any eligibility criteria shall be limited to such Reserves and changes as the Administrative Agent determines, in its Permitted Discretion, are appropriate based on the analysis of facts or events first occurring or first discovered by the Administrative Agent after the Closing Date or that differ materially from facts or events occurring and known to the Administrative Agent on the Closing Date, (b) in no event shall Reserves or changes in eligibility criteria with respect to any component of the Borrowing Base duplicate any other Reserves currently established or maintained or eligibility criteria to the extent addressed thereby, (c) the amount of any such Reserve or change in eligibility criteria shall be a reasonable quantification of the incremental dilution of the Borrowing Base attributable to the relevant contributing factors and have a reasonable relationship to the event, condition or other matter that is the basis for such Reserve or change and (d) in no event shall Reserves to reflect the dilution of Eligible Accounts Receivable be imposed until dilution of Accounts exceeds 5.0% of the gross face amount of such Accounts, in which case a Reserve shall be established in an amount equal to 1.0% of the value of Accounts for each percentage point (or portion thereof) of dilution in excess 5.0%.
SECTION 2.23 Currency Equivalents.
(a) The Administrative Agent shall determine the Dollar Amount of each Loan denominated in an Alternative Currency and Letter of Credit Obligation in respect of Letters of Credit denominated in an Alternative Currency (i) for Loans, as of the first day of each Interest Period applicable thereof, and (ii) for Letters of Credit, as of the end of each fiscal quarter of the Borrower, and in each case shall promptly notify the Borrower of each Dollar Amount so determined by it. Each such calculation shall bas on the basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars. For purposes of this Section 2.23, the “Spot Rate” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date of such determination; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
(b) If after giving effect to any such determination of a Dollar Amount, the sum of the aggregate outstanding amount of the Revolving Loans denominated in Alternative Currencies and the Letter of Credit Obligations denominated in Alternative Currencies exceeds the aggregate Dollar Amount of Revolving Commitments then in effect, the Borrower shall, within five Business Days of receipt of notice thereof from the Administrative Agent setting forth such calculation in reasonable detail, prepay the applicable Revolving Loans denominated in Alternative Currencies under the Revolving Facility or take other action as the Administrative Agent, in its discretion, may direct (including to Cash Collateralize the applicable Letter of Credit Obligations) to the extent necessary to eliminate any such excess.
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ARTICLE
III
Taxes, Increased Costs Protection and Illegality
SECTION 3.01 Taxes.
.
(a)
Except as required by applicable Law, any and all payments by the Borrower or any Guarantor to or
for the account of any Agent, any Lender or Issuing Bank under any Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges imposed
by any Governmental Authority, and all liabilities (including additions to tax, penalties and interest) with respect thereto (“Taxes”).
The following shall be “Excluded Taxes”: in the case of each Agent, each Lender and Issuing Bank, (i) Taxes imposed
on or measured by net income (however denominated, and including branch profits and similar Taxes), and franchise or similar Taxes, in
each case, that are (A) imposed by the jurisdiction (or political subdivision thereof) under the laws of which it is organized or in which
its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, or (B) Other Connection
Taxes; (ii) any U.S. federal Tax that is (or would be) required to be withheld with respect to amounts payable hereunder in respect of
an Eligible Assignee (pursuant to an assignment under Section 10.0711.07)
on the date it becomes an assignee to the extent such Tax is in excess of the Tax that would have been applicable had such assigning Lender
not assigned its interest arising under any Loan Document (unless such assignment is at the express written request of the Borrower);
(iii) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender, Agent or Issuing Bank with respect
to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (A) such Lender, Agent or Issuing Bank
acquires such interest in the applicable Commitment or, to the extent a Lender acquires an interest in a Loan not funded pursuant to a
prior Commitment, acquires such interest in such Loan (other than pursuant to an assignment request by the Borrower under Section 3.07)
or (B) such Lender, changes its Lending Office (other than at the written request of the Borrower to change such Lending Office), except
in each case to the extent that pursuant to Section 3.01, amounts with respect to such Taxes were payable to such Lender’s,
Agent’s or Issuing Bank’s assignor immediately before such Lender, Agent or Issuing Bank became a party hereto, or to such
Lender immediately before it changed its Lending Office; (iv) any U.S. federal withholding Taxes imposed as a result of the failure of
any Agent, Lender or Issuing Bank to comply with the provisions of Sections 3.01(b), 3.01(c) and 3.01(d) (in the
case of any Foreign Lender, as defined below) or the provisions of Section 3.01(e) (in the case of any U.S. Lender, as defined
below), (v) any Taxes imposed as a result of any Lender or any other recipient of such payment (A) not dealing at arm’s length (within
the meaning of the Canadian Tax Act) with any Loan Party, or (B) being at any time a “specified non-resident shareholder”
(within the meaning of subsection 18(5) of the Canadian Tax Act) of any Loan Party or at any time not dealing at arm’s length (within
the meaning of the Canadian Tax Act) with a “specified shareholder” (within the meaning of subsection 18(5) of the Canadian
Tax Act) of any Loan Party (other than, in each of cases (A) and (B), where such non-arm’s length, “specified shareholder”,”
or “specified non-resident shareholder” relationship arises from the Lender or 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) and (vi) any
Taxes imposed on any amount payable to or for the account of any Agent, Lender or Issuing Bank as a result of the failure of such recipient
to satisfy the applicable requirements under FATCA to establish that such payment is exempt from withholding under FATCA. If the Borrower,
a Guarantor or other applicable Withholding Agent is required to deduct any Taxes or Other Taxes (as defined below) from or in respect
of any sum payable under any Loan Document to any Agent, any Lender or Issuing Bank, (i) except in the case of Excluded Taxes, the sum
payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums
payable under this Section 3.01(a)), each of such Agent, such Lender or Issuing Bank receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the applicable Withholding Agent shall make such deductions, (iii) the applicable
Withholding Agent shall pay the full amount deducted to the relevant taxing authority, and (iv) within thirty days after the date of such
payment by the Borrower or any Guarantor (or, if receipts or evidence are not available within thirty days, as soon as practicable thereafter),
the Borrower or applicable Guarantor shall furnish to such Agent, Lender or Issuing Bank (as the case may be) the original or a facsimile
copy of a receipt evidencing payment thereof to the extent such a receipt has been made available to the Borrower or applicable Guarantor
(or other evidence of payment reasonably satisfactory to the Administrative Agent). If the Borrower or applicable Guarantor fails to pay
any Taxes or Other Taxes when due to the appropriate taxing authority then the Borrower or applicable Guarantor shall indemnify such Agent,
such Lender and such Issuing Bank for any incremental Taxes that may become payable by such Agent, such Lender or such Issuing Bank arising
out of such failure.
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(b) To the extent it is legally able to do so, each Agent, Lender or Issuing Bank (including an Eligible Assignee to which a Lender assigns its interest in accordance with Section 11.07, unless such Eligible Assignee is already a Lender hereunder) that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (each, a “Foreign Lender”) agrees to complete and deliver to the Borrower and the Administrative Agent on or prior to the date on which the Foreign Lender becomes a party hereto (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two (2) accurate, complete and signed copies of whichever of the following is applicable: (i) IRS Form W-8BEN or Form W-8BEN-E certifying that it is entitled to benefits under an income tax treaty to which the United States is a party; (ii) IRS Form W-8ECI certifying that the income receivable pursuant to any Loan Document is effectively connected with the conduct of a trade or business in the United States; (iii) if the Foreign Lender is not (A) a bank described in Section 881(c)(3)(A) of the Code, (B) a 10-percent shareholder of the Borrower described in Section 871(h)(3)(B) of the Code, or (C) a controlled foreign corporation related to the Borrower within the meaning of Section 864(d) of the Code, a certificate to that effect in substantially the form attached hereto as Exhibit G (a “Non-Bank Certificate”) and an IRS Form W-8BEN or Form W-8BEN-E, certifying that the Foreign Lender is not a United States person; or (iv) to the extent a Foreign Lender is not the beneficial owner for U.S. federal income tax purposes, an IRS Form W-8IMY (or any successor forms) of the Foreign Lender, accompanied by, as and to the extent applicable, an IRS Form W-8BEN, Form W-8BEN-E, Form W-8ECI, Non-Bank Certificate, Form W-9, Form W-8IMY (or other successor forms) and any other required supporting information from each beneficial owner (it being understood that a Foreign Lender need not provide certificates or supporting documentation from beneficial owners if (A) the Foreign Lender is a “qualified intermediary” or “withholding foreign partnership” for U.S. federal income tax purposes and (B) such Foreign Lender is as a result able to establish, and does establish, that payments to such Foreign Lender are, to the extent applicable, entitled to an exemption from or, if an exemption is not available, a reduction in the rate of, U.S. federal withholding Taxes without providing such certificates or supporting documentation); or (v) any other form prescribed by applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable requirements of law to permit the Borrower and the Administrative Agent to determine the withholding or deduction required to be made.
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(c) In addition, each such Foreign Lender shall, to the extent it is legally entitled to do so, (i) promptly submit to the Borrower and the Administrative Agent two (2) accurate, complete and signed copies of such other or additional forms or certificates (or such successor forms or certificates as shall be adopted from time to time by the relevant taxing authorities) as may then be applicable or available to secure an exemption from or reduction in the rate of U.S. federal withholding Tax (1) on or before the date that such Foreign Lender’s most recently delivered form, certificate or other evidence expires or becomes obsolete or inaccurate in any material respect, (2) after the occurrence of a change in the Foreign Lender’s circumstances requiring a change in the most recent form, certificate or evidence previously delivered by it to the Borrower and the Administrative Agent, and (3) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, and (ii) promptly notify the Borrower and the Administrative Agent of any change in the Foreign Lender’s circumstances that would modify or render invalid any claimed exemption or reduction. This Section 3.01(c) shall not apply to any reporting requirements under FATCA.
(d) If a payment made to a Lender under any Loan Document would be subject to Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine whether such Foreign Lender has complied with such Foreign Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 3.01(d), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(e) Each Agent, Lender or Issuing Bank that is a “United States person” (within the meaning of Section 7701(a)(30) of the Code) (each, a “U.S. Lender”) agrees to complete and deliver to the Borrower and the Administrative Agent two (2) copies of accurate, complete and signed IRS Form W-9 or successor form certifying that such U.S. Lender is not subject to U.S. federal backup withholding Tax (i) on or prior to the Closing Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or inaccurate in any material respect, (iii) after the occurrence of a change in the U.S. Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(f) The Borrower agrees to pay any and all present or future stamp, court or documentary Taxes and any other excise (in the nature of a documentary or similar Tax), property, intangible, filing or mortgage recording Taxes or charges or similar levies imposed by any Governmental Authority that arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document (including additions to Tax, penalties and interest related thereto) excluding, in each case, such amounts that are Other Connection Taxes imposed in connection with an Assignment and Assumption, grant of a participation, transfer or assignment to or designation of a new applicable Lending Office or other office for receiving payments under any Loan Document, except to the extent that any such change is requested in writing by the Borrower (all such non-excluded Taxes described in this Section 3.01(f) being hereinafter referred to as “Other Taxes”).
(g) If any Taxes or Other Taxes are directly asserted against any Agent, Lender or Issuing Bank with respect to any payment received by such Agent or Lender in respect of any Loan Document, such Agent, Lender or Issuing Bank may pay such Taxes or Other Taxes and the Borrower will promptly indemnify and hold harmless such Agent, Lender or Issuing Bank for the full amount of such Taxes (other than Excluded Taxes) and Other Taxes (and any Taxes (other than Excluded Taxes) and Other Taxes imposed on amounts payable under this Section 3.01), and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted. Payments under this Section 3.01(g) shall be made within ten days after the date the Borrower receives written demand for payment from such Agent, Lender or Issuing Bank.
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(h) Except as provided in Section 11.07(e), a Participant shall not be entitled to receive any greater payment under this Section 3.01 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant.
(i) If any Agent, any Lender or Issuing Bank determines, in its sole discretion, exercised in good faith, that it has received a refund in respect of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or any Guarantor, as the case may be, or with respect to which the Borrower or any Guarantor, as the case may be, has paid additional amounts pursuant to this Section 3.01, it shall promptly pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or any Guarantor under this Section 3.01 with respect to the Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses incurred by such Agent, such Lender or Issuing Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower or applicable Guarantor, as the case may be, upon the request of such Agent, such Lender or Issuing Bank, agrees to repay the amount paid over to the Borrower or applicable Guarantor, as the case may be (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent, such Lender or Issuing Bank in the event such Agent, such Lender or Issuing Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (i), in no event will such Agent, Lender or Issuing Bank be required to pay any amount to the Borrower or applicable Guarantor pursuant to this paragraph (i) the payment of which would place such Agent, Lender or Issuing Bank in a less favorable net after-Tax position than the indemnified party would have been in if the Tax or Other 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 or Other Tax had never been paid. Such Agent, such Lender or Issuing Bank, as the case may be, shall provide the Borrower upon request with a copy of any notice of assessment or other evidence reasonably available of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, such Agent or Issuing Bank may delete any information therein that such Lender, such Agent or Issuing Bank deems confidential or not relevant to such refund in its reasonable discretion). This subsection shall not be construed to require any Agent, any Lender or Issuing Bank to make available its tax returns (or any other information relating to its Taxes that it reasonably deems confidential) to the Borrower, any Guarantor or any other Person.
(j) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.01(a) or (g) with respect to such Lender, it will, if requested by the Borrower in writing, use commercially reasonable efforts (subject to legal and regulatory restrictions) to mitigate the effect of any such event, including by designating another Lending Office for any Loan affected by such event and by completing and delivering or filing any Tax-related forms that such Lender is legally able to deliver and that would reduce or eliminate any amount of Taxes or Other Taxes required to be deducted or withheld or paid by the Borrower; provided that such efforts are made at the Borrower’s expense and are on terms that, in the reasonable judgment of such Lender, do not cause such Lender or any of its Lending Offices to suffer any economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.01(j) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.01(a) or (g).
(k) Notwithstanding any other provision of this Agreement, the Borrower and the Administrative Agent may deduct and withhold any Taxes required by any Laws (including, for the avoidance of doubt, FATCA) to be deducted and withheld from any payment under any of the Loan Documents, subject to the provisions of this Section 3.01.
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(l) Each Agent or Lender, as applicable, shall severally indemnify the Administrative Agent, within ten days after demand therefor, for (i) any Taxes attributable to such Agent or Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.07(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Agent or Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Agent or Lender by the Administrative Agent shall be conclusive absent manifest error. Each Agent and Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Agent or Lender under any Loan Document or otherwise payable by the Administrative Agent to such Agent or Lender from any other source against any amount due to the Administrative Agent under this Section 3.01(l).
(m) Each Lender authorizes the Administrative Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided by the Lender to the Administrative Agent pursuant to paragraph (b), (c), (d), or (e) of this Section 3.01.
(n) The agreements in this Section 3.01 shall survive the resignation or replacement of the Administrative Agent, termination of this Agreement and the payment of the Loans and all other amounts payable hereunder and any assignment of rights by, or replacement of, any Lender.
SECTION 3.02
Illegality. If any Lender reasonably 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 EurocurrencyTerm
SOFR or the Alternative Currency Term Rate, or to determine or charge interest rates based upon the
EurocurrencyTerm SOFR or the Alternative Currency Term
Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars, Canadian Dollars or any Alternative Currency in the Londonapplicable
interbank market, the Canadian bankers’ acceptances market or any other applicable offshore interbank market, as applicable, then,
on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue
EurocurrencyTerm SOFR Loans
or Alternative Currency Term Rate Loans or to convert Base Rate Loans to Eurocurrency RateTerm
SOFR Loans, shall 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 Adjusted Eurocurrency RateTerm
SOFR 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 Adjusted Eurocurrency
RateTerm SOFR component of the Base Rate, in each
case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, (A) with respect to Borrowings denominated in Dollars, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurocurrency RateTerm
SOFR Loans and shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert
all Eurocurrency RateTerm
SOFR 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 reference to the Adjusted
Eurocurrency RateTerm SOFR 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
RateTerm SOFR Loans to such day, or immediately,
if such Lender may not lawfully continue to maintain such Eurocurrency RateTerm
SOFR Loans and (B) with respect to Borrowings denominated in an Alternative Currency, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of such EurocurrencyAlternative
Currency Term Rate Loans and shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all EurocurrencyAlternative
Currency Term Rate Loans of such Lender to a Loan bearing interest at an alternative rate mutually acceptable to the Borrower
and the applicable Lenders, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
EurocurrencyAlternative Currency
Term Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such EurocurrencyAlternative
Currency Term Rate Loans; provided, however, that if the Borrower and the applicable Lenders cannot agree within a reasonable
time on an alternative rate for such Loans, the Borrower may, at its discretion, either (x) prepay such Loans or (y) maintain such Loans
outstanding, in which case, the interest rate payable to the applicable Lender on such Loans will be the rate determined by the Administrative
Agent as its cost of funds to fund a Borrowing of such Loans with maturities comparable to the Interest Period applicable thereto plus
the Applicable Rate or (C) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the
Adjusted Eurocurrency RateTerm
SOFR component of the Base Rate with respect to any Base Rate Loans, the Administrative Agent shall during the period of such
suspension compute the Base Rate applicable to such Lender without reference to the Adjusted Eurocurrency
RateTerm SOFR component thereof until the Administrative
Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon
the Eurocurrency RateTerm
SOFR. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
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SECTION 3.03 Inability to Determine Rates.
(a)
If the Administrative Agent or the Required Lenders reasonably
determine that for any reason in connection with any request for a Eurocurrency RateTerm
SOFR Loan or an Alternative Currency Loan or a conversion to or continuation thereof that
(a) deposits are not being offered to banks in the London interbank eurodollar marketof
Base Rate Loans to Term SOFR Loans or a continuation of any of such Loans, as applicable, (i) the Administrative Agent determines
(which determination shall be conclusive absent manifest error) that (A) no Successor Rate for the Relevant Rate for the applicable
amount and Interest Period of such Eurocurrency Rate Loan, (bAgreed
Currency has been determined in accordance with Section 3.03(b) or Section 3.03(c) and the circumstances under clause (i) of Section 3.03(b)
or of Section 3.03(c) or the Scheduled Unavailability Date, or the SOFR Scheduled Unavailability Date, has occurred with respect to such
Relevant Rate (as applicable), or (B) adequate and reasonable means do not otherwise
exist for determining the Adjusted EurocurrencyRelevant
Rate for anythe applicable
Agreed Currency for any determination date(s) or requested Interest Period,
as applicable, with respect to a proposed Eurocurrency RateTerm
SOFR Loan or an Alternative Currency Loan or in connection
with an existing or proposed Base Rate Loan, or (cii) the
Eurocurrency RateAdministrative
Agent or the Required Lenders determine that for any reason that the Relevant Rate with respect to a proposed Loan denominated in an Agreed
Currency for any requested Interest Period with respect to a proposed Eurocurrency Rate Loanor
determination date(s) does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, (i) the
obligation of the Lenders to make or maintain such Eurocurrency Rate Loans shall be suspended, and (ii) in
the event of a determination described in the preceding sentence with respect to the Adjusted Eurocurrency
Rate component of the Base Rate, the utilization of the Adjusted Eurocurrency
Rate component in determining the Base Rate shall be suspended, in each case until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice.
Thereafter, (x) the obligation of the Lenders to make or maintain Loans in the affected currencies, as applicable, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended in each case to the extent of the affected Alternative Currency Loans or Interest Period or determination date(s), as applicable, and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR 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 Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice.
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(a) Upon
receipt of such notice, (i) with respect to Borrowings denominated in Dollars, the Borrower
may revoke any pending request for a Borrowing of, or conversion
to Term SOFR Loans, or Borrowing of, or continuation of Eurocurrency
Rate LoansAlternative Currency Loans to the extent of the affected
Alternative Currency Loans or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans indenominated
in Dollars in the Dollar Amount of the amount specified therein orand
(ii) with respect to Borrowings denominated in an Alternative Currency, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans and shall convert all such Eurocurrency Rate Loans
of such Lender to a Loan bearing interest at an alternative rate mutually acceptable to the Borrower and the applicable Lenders; provided
however, that if the Borrower and the applicable Lenders cannot agree within a reasonable time on an alternative rate for such Loans,
the Borrower may, at its discretion, either (A) prepay such Loans or (B) maintain such Loans outstanding, in which case, the interest
rate payable to the applicable Lender on such Loans will be the rate determined by the Administrative Agent as its cost of funds to fund
a Borrowing of such Loans with maturities comparable to the Interest Period applicable thereto plus
the Applicable Rate.(A) any outstanding Term SOFR Loans
shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period and (B)
any outstanding affected Alternative Currency Loans, at the Borrower’s election, shall either (1) be converted into a Borrowing
of Base Rate Loans denominated in Dollars in the Dollar Amount of the amount of such outstanding Alternative Currency Loan immediately,
in the case of an Alternative Currency Daily Rate Loan or at the end of the applicable Interest Period, in the case of an Alternative
Currency Term Rate Loan or (2) be prepaid in full immediately, in the case of an Alternative Currency Daily Rate Loan, or at the end of
the applicable Interest Period, in the case of an Alternative Currency Term Rate Loan; provided that if no election is made by
the Borrower (x) in the case of an Alternative Currency Daily Rate Loan, by the date that is three Business Days after receipt by the
Borrower of such notice or (y) in the case of an Alternative Currency Term Rate Loan, by the last day of the current Interest Period for
the applicable Alternative Currency Term Rate Loan, the Borrower shall be deemed to have elected clause (1) above.
(b)
Replacement of SOFR or SOFR Successor Rate. Notwithstanding
anything to the contrary herein or inin
this Agreement or any other Loan Document:Documents,
if the Administrative Agent (in consultation with the Borrower) determines (which determination shall be conclusive absent manifest error),
or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower)
that the Borrower or Required Lenders (as applicable) have determined, that:
(i)
On March 5, 2021 the Financial Conduct Authority
(“FCA”), the regulatory supervisor of ICE 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 U.S. dollar ICE LIBOR tenor settings. On the earliest of (A) the date that all Available Tenors of U.S dollar ICE 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 ICE 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 quarterly basis.
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(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.
(y) On the Early Opt-in
Effective Date in respect of an Other Rate Early Opt-in, the Benchmark Replacement will replace ICE 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 Borrower 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 Borrower’s receipt
of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower 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