FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated as of May 19, 2023 (this “Amendment”), is by and among VEECO INSTRUMENTS INC., a Delaware corporation (“Borrower”), the Guarantors party hereto, HSBC BANK USA, NATIONAL ASSOCIATION, as administrative agent and collateral agent for the Lenders (in such capacities, “Agent”), and the financial institutions from time to time party to the Loan Agreement (as defined below) signatory hereto (collectively, the “Lenders”).
WHEREAS, Borrower, the Guarantors, the Lenders and Agent have previously entered into that certain Loan and Security Agreement, dated as of December 16, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Loan Agreement”, and as amended by this Amendment and as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), pursuant to which the Lenders have made certain loans and financial accommodations available to Borrower;
Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Loan Agreement has the meaning assigned to such term in the Loan Agreement. The rules of construction and other interpretive provisions specified in Sections 1.1, 1.3 and 1.4 of the Loan Agreement shall apply to this Amendment, including terms defined in the preamble and recitals hereto.
Section 2.
Amendments to the Loan Agreement. Subject to the satisfaction in full of the conditions precedent
set forth in Section 3 hereof, effective as of the First Amendment Effective Date (as defined below), the Existing Loan Agreement
is hereby amended as set forth in Annex A attached hereto such that all of the newly inserted double underlined text (indicated
textually in the same manner as the following example: double-underlined
text) and any formatting changes attached hereto shall be deemed to be inserted and all of the stricken text (indicated textually
in the same manner in the following example: stricken text) shall be deemed to be deleted
therefrom.
Section 3. Effectiveness. This Amendment shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of (and in form and substance reasonably satisfactory to) or waived by Agent and the Required Lenders (such date, the “First Amendment Effective Date”):
(a) Amendment. This Amendment shall have been duly executed and delivered by the Loan Parties, Agent and the Required Xxxxxxx, and Agent shall have received a fully executed copy hereof.
(b) Fees and Expenses. Agent shall have received all fees payable to Agent on or prior to the First Amendment Effective Date pursuant to the Loan Agreement and all other reasonable and documented out-of-pocket fees and expenses incurred by Agent on or prior to the First Amendment Effective Date.
(c) Closing Certificate. Agent shall have received a closing certificate signed by an Authorized Officer of Xxxxxxxx dated as of the date hereof, stating that (i) all representations and warranties set forth in this Amendment, the Loan Agreement and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as if made on and as of such date except to the extent such representations or warranties are limited by their terms to a specific date (in which case such representation or warranty shall be true and correct on and as of such earlier date in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)), (ii) on such date no Default or Event of Default has occurred or is continuing or would result from the closing of this Amendment, (iii) the resolutions of the Board of Directors (or equivalent authority) of each Loan Party authorizing the execution, delivery and performance of this Amendment previously delivered to the Agent have not been amended, modified, revoked or rescinded, (iv) the individuals identified by name and title as the officers, directors and/or authorized signatories of each Loan Party on the applicable certificate previously delivered to the Agent continue to be authorized to sign this Amendment on behalf of such Loan Party; (v) the applicable certificate of incorporation (or certificate of formation) of each Loan Party previously delivered to the Agent remain in full force and effect as of the date hereof without amendment or other modification; (vi) the applicable by-laws (or operating agreement) of each Loan Party other than the Borrower previously delivered to the Administrative Agent remain in full force and effect as of the date hereof without amendment or other modification; and (vii) attached to the Closing Certificate is a true, correct and complete copy of the by-laws of the Borrower in effect on the date hereof and except as reflected therein there have been no amendments, restatements or other modifications thereto.
(d) Purchase Agreement. Agent shall have received shall have received a true and correct copy of that certain Purchase Agreement, dated as of May 16, 2023, by and between the Borrower and Barclays Capital Inc.
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Section 4. Effect of Amendment. Except as expressly set forth herein or in the Loan Agreement, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or Agent under the Loan Agreement or under any Loan Document and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Agreement or any other provision of the Loan Agreement or any Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. On and as of the First Amendment Effective Date, each reference in the Loan Agreement to “this Agreement”, “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference, and each reference in any Loan Document to “the Loan Agreement”, “thereof”, “thereunder”, “therein” or “thereby” or any other similar reference to the Loan Agreement shall refer to the Loan Agreement as amended hereby.
Section 5. Representations and Warranties. As of the First Amendment Effective Date, each Loan Party hereby represents and warrants to Agent and the Required Lenders that:
(a) such Loan Party has full power, authority and legal right to enter into this Amendment and to perform all its Obligations hereunder and under the Loan Agreement, and the execution, delivery and performance of this Amendment (i) are within such Loan Party’s corporate or limited liability company power, as applicable, have been duly authorized, are not in contravention of applicable law or the terms of such Loan Party’s by-laws, operating agreement, certificate of incorporation, certificate of formation, as applicable, or other applicable documents relating to such Loan Party’s organization or formation or to the conduct of such Loan Party’s business or of any agreement or undertaking to which such Loan Party is a party or by which such Loan Party is bound, and (ii) will neither conflict with nor result in any breach in any of the provisions of or constitute a default under or result in the creation of any Lien except Permitted Encumbrances upon any asset of such Loan Party under the provisions of any agreement, charter document, by-law, or other instrument to which such Loan Party or its property is a party or by which it may be bound;
(b) this Amendment and the Loan Agreement constitute the legal, valid and binding obligation of such Loan Party, enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(c) after giving effect to this Amendment, the representations and warranties of such Loan Party in the Loan Agreement and in each other Loan Document to which it is a party are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such date as if made on and as of such date except to the extent such representations or warranties are limited by their terms to a specific date (in which case such representation or warranty shall be true and correct on and as of such earlier date in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)); and
(d) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing on the date hereof or would result from the transactions contemplated by this Amendment.
Section 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law principals.
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Section 7. Counterparts; Telecopied Signatures. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment, and any separate letter agreements with respect to fees payable to Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 2 of this Amendment, this Amendment shall become effective when it shall have been executed by Agent and when Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Amendment or any certificate delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. or such certificate. Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms of this Amendment, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
Section 8. Miscellaneous. This Amendment constitutes a Loan Document.
[SIGNATURE PAGES FOLLOW]
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VEECO INSTRUMENTS INC., as Borrower | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Senior Vice President & Chief Financial Officer | |
VEECO PROCESS EQUIPMENT INC., as a Guarantor | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Senior Vice President & Chief Financial Officer | |
VEECO APAC LLC, as a Guarantor | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Senior Vice President & Chief Financial Officer |
[Signature Page to First Amendment to Loan and Security Agreement]
HSBC BANK USA, NATIONAL ASSOCIATION, | ||
as Agent | ||
By: | /s/ Xxxxxx Xxxxxxxx | |
Name: | Xxxxxx Xxxxxxxx | |
Title: | Vice President |
[Signature Page to First Amendment to Loan and Security Agreement]
HSBC BANK USA, NATIONAL ASSOCIATION, | ||
as a Lender | ||
By: | /s/ Xxxxxxx Xxxxxx | |
Name: | Xxxxxxx Xxxxxx | |
Title: | SVP, Relationship Manager |
[Signature Page to First Amendment to Loan and Security Agreement]
Barclays Bank PLC, | ||
as a Lender | ||
By: | /s/ Xxxx X. Xxxxxxxxx | |
Name: | Xxxx X. Xxxxxxxxx | |
Title: | Assistant Vice President |
[Signature Page to First Amendment to Loan and Security Agreement]
Citibank N.A., | ||
as a Lender | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: | Xxxxxx Xxxxx | |
Title: | SVP |
[Signature Page to First Amendment to Loan and Security Agreement]
Santander Bank N.A., | ||
as a Lender | ||
By: | /s/ Puiki Lok | |
Name: | Xxxxx Xxx | |
Title: | Senior Vice President |
[Signature Page to First Amendment to Loan and Security Agreement]
ANNEX A
[See attached.]
LOAN AND SECURITY AGREEMENT dated as of December 16, 2021 among VEECO INSTRUMENTS INC., as Borrower, the Guarantors that are from time to time parties hereto, the Lenders that are from time to time parties hereto, HSBC BANK USA, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent and HSBC BANK USA, NATIONAL ASSOCIATION, BARCLAYS BANK PLC, SANTANDER BANK, N.A. and CITIBANK, N.A. as Joint Lead Arrangers and Joint Bookrunners |
DB1/ 125929715.14138282728.9 TABLE OF CONTENTS (continued) Page -ii-3.9. Capital Adequacy. 59 3.10. Taxes. 60 IV. COLLATERAL: GENERAL TERMS. 64 4.1. Security Interest in the Collateral. 64 4.2. Perfection of Security Interest. 64 4.3. [Reserved]. 65 4.4. Preservation of Collateral. 65 4.5. Ownership of Collateral. 65 4.6. Defense of Agent’s and Xxxxxxx’ Interests. 66 4.7. Books and Records. 66 4.8. Financial Disclosure. 66 4.9. Compliance with Laws. 67 4.10. Inspection of Premises. 67 4.11. Insurance. 67 4.12. [Reserved]. 68 4.13. Payment of Taxes. 68 4.14. Payment of Leasehold Obligations. 68 4.15. [Reserved]. 68 4.16. [Reserved]. 68 4.17. [Reserved]. 68 4.18. Exculpation of Liability. 68 4.19. [Reserved]. 69 4.20. Financing Statements. 69 4.21. [Reserved]. 69 4.22. Agent as Collateral Agent. 69 V. REPRESENTATIONS AND WARRANTIES. 71 5.1. Authority. 71 5.2. Formation and Qualification. 72 5.3. [Reserved]. 72 5.4. Tax Returns. 72 5.5. Financial Statements. 72 5.6. Entity Name. 73 |
DB1/ 125929715.14138282728.9 TABLE OF CONTENTS (continued) Page -iii-5.7. O.S.H.A. and Environmental Compliance. 73 5.8. Solvency; No Litigation, Violation, Indebtedness or Default. 73 5.9. Patents, Trademarks, Copyrights and Licenses. 74 5.10. Licenses and Permits. 75 5.11. No Defaults. 75 5.12. No Burdensome Restrictions. 75 5.13. No Labor Disputes. 75 5.14. Margin Regulations. 75 5.15. Investment Company Act. 76 5.16. Disclosure. 76 5.17. Swaps. 76 5.18. Conflicts. 76 5.19. [Reserved]. 76 5.20. Business and Property of Loan Parties. 76 5.21. Material Contracts. 77 5.22. Sanctions. 77 5.23. Anti-Corruption and Anti-Bribery Laws. 77 5.24. [Reserved]. 77 5.25. Beneficial Ownership Certification. 77 VI. AFFIRMATIVE COVENANTS. 77 6.1. Payment of Fees. 78 6.2. Conduct of Business and Maintenance of Existence and Assets. 78 6.3. Violations. 78 6.4. Use of Proceeds 78 6.5. Execution of Supplemental Instruments. 78 6.6. Payment of Indebtedness. 78 6.7. Standards of Financial Statements. 78 6.8. Financial Covenants. 79 6.9. Keepwell 79 6.10. Designation of Subsidiaries 79 6.11. Post-Closing Obligations 80 VII. NEGATIVE COVENANTS. 80 |
DB1/ 125929715.14138282728.9 TABLE OF CONTENTS (continued) Page -iv-7.1. Merger, Consolidation and Sale of Assets. 80 7.2. Creation of Liens; Negative Pledges. 81 7.3. Guarantees. 81 7.4. Investments. 81 7.5. Sales and Lease-Backs 81 7.6. Restricted Payments. 82 7.7. Indebtedness. 82 7.8. Nature of Business. 82 7.9. Transactions with Affiliates. 83 7.10. [Reserved]. 83 7.11. Subsidiaries 83 7.12. Fiscal Year and Accounting Changes. 83 7.13. Compliance with ERISA. 83 7.14. Amendment of Documents and Material Contracts. 84 7.15. Prepayment, Amendment of Indebtedness. 84 7.16. State of Organization. 85 7.17. Sanctions; Anti-Bribery Laws. 85 VIII. CONDITIONS PRECEDENT. 85 8.1. Conditions to the Closing Date. 85 8.2. Conditions to Each Advance. 88 IX. INFORMATION AS TO LOAN PARTIES. 88 9.1. Disclosure of Material Matters. 89 9.2. [Reserved]. 89 9.3. [Reserved]. 89 9.4. Litigation. 89 9.5. Material Occurrences. 89 9.6. [Reserved]. 89 9.7. Annual Audited Financial Statements. 89 9.8. Quarterly Financial Statements. 89 9.9. Minimum Liquidity[Reserved]. 90 9.10. Other Reports. 90 9.11. Additional Information. 90 |
DB1/ 125929715.14138282728.9 TABLE OF CONTENTS (continued) Page -vi-14.9. Delivery of Documents. 101 14.10. Loan Parties’ Undertaking to Agent. 101 14.11. Bankruptcy Proceedings. 101 14.12. No Liability for Clean-Up of Hazardous Materials. 102 14.13. Certain ERISA Matters. 102 14.14. Rates. 103 14.15. Erroneous Payments. 103 14.16. Joint Lead Arrangers and Joint Bookrunners 106 XV. MISCELLANEOUS. 106 15.1. Governing Law. 106 15.2. Entire Understanding; Amendments. 107 15.3. Successors and Assigns; Participations; New Lenders. 108 15.4. Application of Payments. 110 15.5. Indemnity; Funding Losses. 111 15.6. Notice. 111 15.7. Survival. 112 15.8. Severability. 113 15.9. Expenses. 113 15.10. Injunctive Relief. 113 15.11. Consequential Damages. 113 15.12. Captions. 114 15.13. Counterparts; Telecopied Signatures. 114 15.14. Construction. 114 15.15. Confidentiality. 114 15.16. Publicity. 115 15.17. Electronic Execution of Assignments and Certain Loan Documents 115 15.18. Confirmation of Flood Policies and Procedures 115 15.19. Patriot Act Notice. 116 15.20. Acknowledgement Regarding Any Supported QFCs. 116 15.21. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. 116 15.22. Currency Conversion. 117 15.23. Lender Representations. 117 |
-i-DB1/ 125929715.14138282728.9 List of Exhibits and Schedules Exhibits Exhibit A [Reserved] Exhibit B Form of Compliance Certificate Exhibit C Form of Revolving Credit Note Exhibit D Form of Promissory Note for Swingline Loans Exhibit E Form of Notice of Borrowing Exhibit F Form of Notice of Conversion Exhibits H-1 to H-4 Form of U.S. Tax Compliance Certificates Exhibit I Form of Commitment Transfer Supplement Schedules Schedule 1.1 Commitments Schedule 1.2(a) Commercial Tort Claims Schedule 1.2(b) Subsidiary Guarantors Schedule 1.3 Unrestricted Subsidiaries Schedule 4.5 Locations Schedule 5.2(a) Formation and Qualification Schedule 5.2(b) Subsidiaries and Equityholders Schedule 5.4 Federal Tax Identification Nos. Schedule 5.6 Entity Names Schedule 5.7 Environmental Schedule 5.8(b) Litigation Schedule 5.8(d) Plans Schedule 5.9 Intellectual Property Schedule 5.10 Licenses and Permits Schedule 6.11 Post-Closing Obligations Schedule 7.2 Existing Liens Schedule 7.3(a) Existing Guarantees Schedule 7.3(b) Existing Subsidiary Guarantees Schedule 7.4 Existing Investments Schedule 7.7 Existing Indebtedness Schedule 7.9 Existing Affiliate Transactions |
LOAN AND SECURITY AGREEMENT This Loan and Security Agreement is entered into as of December 16, 2021, by and among Veeco Instruments Inc., a Delaware corporation (“Borrower”), the Guarantors (as hereinafter defined) which are now or which hereafter become a party hereto, HSBC BANK USA, NATIONAL ASSOCIATION (“HSBC”) and the other financial institutions which are now or which hereafter become a party hereto (each, a “Lender” and collectively, the “Lenders”), HSBC, as administrative agent and collateral agent for the Lenders (in such capacities, the “Agent”), and HSBC, Barclays Bank PLC, Santander Bank, N.A. and CitiBank, N.A. as joint lead arrangers (in such capacity, the “Joint Lead Arrangers”) and joint bookrunners (in such capacity, the “Joint Bookrunners”). WHEREAS, Borrower has requested that the Lenders provide a revolving credit facility of up to an aggregate principal amount of $150,000,000 to pay fees and expenses related to the Transactions (as hereinafter defined) and for ongoing working capital and general corporate purposes, and the Lenders have agreed to provide such a revolving credit facility and the Issuer (as hereinafter defined) has indicated its willingness to provide a letter of credit facility (as a sub-facility of such revolving credit facility), in each case, subject to the terms and conditions of this Agreement; and WHEREAS, the Lenders have indicated their willingness to lend, and the Issuer has indicated its willingness to issue Letters of Credit, on the terms and subject to the conditions set forth herein. IN CONSIDERATION of the mutual covenants and undertakings herein contained, each Loan Party (as defined below), the Lenders and the Agent hereby agree as follows: I. DEFINITIONS. 1.1. Accounting Terms. As used in this Agreement, the Notes, any Loan Document, or any certificate, report or other document made or delivered pursuant to this Agreement, accounting terms not defined in Section 1.2 or elsewhere in this Agreement and accounting terms partly defined in Section 1.2 to the extent not defined, shall have the respective meanings given to them under GAAP; provided, however, whenever such accounting terms are used for the purposes of determining compliance with financial covenants in this Agreement, such accounting terms shall be defined in accordance with GAAP as applied in preparation of the audited financial statements of Borrower for the fiscal year ended December 31, 2021. Notwithstanding the foregoing, for the avoidance of doubt any lease that is treated as an operating lease for purposes of GAAP as of December 14, 2018 shall not be treated as Indebtedness or as a capital lease and shall continue to be treated as an operating lease (and any future lease, if it were in effect on the date hereof, that would be treated as an operating lease for purposes of GAAP as of the date hereof shall be treated as an operating lease), in each case for purposes of this Agreement, notwithstanding any actual or proposed change in GAAP after the date hereof. 1.2. General Terms. For purposes of this Agreement the following terms shall have the following meanings: “2023 Convertible Notes” means the 2.70% Convertible Senior Notes due 2023, issued by Borrower in the original aggregate principal amount of $345,000,000 pursuant to that certain Indenture dated as of January 18, 2017, by and among Borrower and U.S. Bank National Association, as trustee, as |
the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof. “2025 Convertible Notes” means the 3.50% Convertible Senior Exchange Notes due 2025, issued by Borrower in the original aggregate principal amount of $132,500,000 pursuant to that certain Indenture, dated as of November 17, 2020, by and among Borrower and U.S. Bank National Association, as trustee, as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof. “2025 Convertible Notes Maturity Date” means January 15, 2025, or any such later date on which the 2025 Convertible Notes shall mature pursuant to any refinancing of the 2025 Convertible Notes permitted under Section 7.15 hereto. “2027 Convertible Notes” means the 3.75% Convertible Senior Notes due 2027, issued by Xxxxxxxx in the original aggregate principal amount of $125,000,000 pursuant to that certain Indenture, dated as of May 18, 2020, by and among Xxxxxxxx and U.S. Bank National Association, as trustee, as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and hereof. “Accountants” shall have the meaning set forth in Section 9.7. “Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment. “Adjustment Date” shall have the meaning set forth in the definition of “Applicable Margin”. “Advances” shall mean and include the Revolving Advances, Swingline Loans, and Letters of Credit. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate” of any Person shall mean (a) any Person which, directly or indirectly, is in control of, is controlled by, or is under common control with such Person, or (b) any Person who is a director, officer, manager, managing member or partner (i) of such Person, (ii) of any Subsidiary of such Person or (iii) of any Person described in clause (a) above. For purposes of this definition, control of a Person shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by ownership of Equity Interests, contract or otherwise. “Agent” shall have the meaning set forth in the preamble to this Agreement and shall include its successors and permitted assigns. “Agent Parties” shall have the meaning set forth in Section 15.23. “Agreement” shall mean this Loan and Security Agreement, as the same may be amended, restated, amended and restated, modified and/or supplemented from time to time. “Applicable Law” shall mean all laws, rules and regulations applicable to the Person, conduct, transaction, covenant, Loan Document or contract in question, including all applicable common law and equitable principles; all provisions of all applicable state, federal and foreign constitutions, statutes, 2 |
3 0.50% 0.50% 1.50% 1.50% APPLICABLE MARGIN FOR DOMESTIC RATE LOANS Greater than or equal to 0.75:1.00 but less than 1.50:1.00 Thereafter, effective as of the first Business Day following receipt by Agent of the financial statements of Borrower and Compliance Certificate for the quarter ending December 31, 2021 required under Section 9.8, and thereafter upon receipt of the financial statements of Borrower required under Sections 9.7 and 9.8, as applicable, for each fiscal quarter or fiscal year ending thereafter (each day of such delivery, an “Adjustment Date”), the Applicable Margin shall be adjusted, if necessary, to the applicable percent per annum set forth in the pricing table set forth below corresponding to the Secured Net Leverage Ratio for the trailing twelve month period ending on the last day of the most recently completed fiscal quarter prior to the applicable Adjustment Date (each such period, a “Calculation Period”): 0.75% 1.75% SECURED NET LEVERAGE RATIO Greater than or equal to 1.50:1.00 but less than 2.25:1.00 APPLICABLE MARGIN FOR SOFR LOANS 1.00% APPLICABLE MARGINS FOR DOMESTIC RATE LOANS 2.00% rules, regulations and orders of any Governmental Body, and all orders, judgments and decrees of all courts and arbitrators. “Applicable Margin” shall mean, as of the Closing Date, the applicable percentage specified below: APPLICABLE MARGINS FOR SOFR LOANS Greater than or equal to 2.25:1.00 1.25% 2.25% If Borrower shall fail to deliver the financial statements, certificates and/or other information required under Sections 9.7 and 9.8, as applicable, by the dates required pursuant to such sections, each Applicable Margin shall be conclusively presumed to equal the highest Applicable Margin specified in the pricing table set forth above until the date of delivery of such financial statements, certificates and/or other information, at which time the rate will be adjusted based upon the Secured Net Leverage Ratio reflected in such statements. If, as a result of any restatement of, or other adjustment to, the financial statements of Borrower or for any other reason, Agent determines in its reasonable discretion after consultation with Borrower that (a) the Secured Net Leverage Ratio as previously calculated as of any applicable date was inaccurate, and (b) a proper calculation of the Secured Net Leverage Ratio would have resulted in different pricing for any period, then (i) if the proper calculation of the Secured Net Leverage Ratio would have resulted in higher pricing for such period, Borrower shall automatically and retroactively be required to pay to the Lender, promptly upon demand by the Lender, an amount equal to the excess of the amount of interest that should have been paid for such period over the amount of interest actually paid for such period; and Less than 0.75:1.00 |
(ii) if the proper calculation of the Secured Net Leverage Ratio would have resulted in lower pricing for such period, Lender shall have no obligation to repay interest to Borrower; provided that, if as a result of any restatement or other event a proper calculation of the Secured Net Leverage Ratio would have resulted in higher pricing for one or more periods and lower pricing for one or more other periods (due to the shifting of income or expenses from one period to another period or any similar reason), then the amount payable by Borrower pursuant to clause (i) above shall be equal to the excess, if any, of the amount of interest that should have been paid for all applicable periods over the amounts of interest actually paid for such periods. “Approved Fund” shall mean any Fund that is advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an entity that administers or manages a Lender. “Authority” shall have the meaning set forth in Section 4.19(c). “Authorized Officer” shall mean with respect to any Loan Party, the chief executive officer, president, vice president, chief financial officer, senior accountant, treasurer, assistant treasurer, secretary, assistant secretary, controller, comptroller or any other Person with an equivalent title or role of such Loan Party or such other officers as Borrower shall designate in writing to Agent, but in any event, with respect to financial matters, the chief financial officer, senior accountant, treasurer, assistant treasurer, controller, comptroller or any other Person with an equivalent title or role of Borrower. “Available Amount” shall mean Maximum Revolving Advance Amount minus, in either case, the sum of (1) the outstanding amount of the Revolving Advances and Swingline Loans plus (2) the Letter of Credit Reserve. “Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.8. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time 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 Product Obligations” shall mean the following services or facilities extended to any Loan Party by Agent, Lender or any of their respective Affiliates: (a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions, EFT or any other electronic funds 4 |
transfer, (f) cash management, including controlled disbursement accounts or services, and (g) trade finance arrangements. “Bankruptcy Code” shall mean Chapter 1 of Title 11 of the United States Code (11 U.S.C §202, et seq.), as amended from time to time. “Bankruptcy Proceeding” shall have the meaning set forth in Section 14.11. “Base Rate” shall mean, on any date, a variable rate of interest per annum equal to the highest of (a) the highest of the “prime rate,” “reference rate,” “base rate” or other similar rate as determined by Agent (or any successor to Agent) announced from time to time by HSBC (or any successor to HSBC) (with the understanding that any such rate may merely be a reference rate and may not necessarily represent the lowest or best rate actually charged to any customer by such bank), (b) the Federal Funds Rate plus ½ of 1%, and (c) Adjusted Term SOFR for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus one percent (1.00%) per annum; and each change in any interest rate provided for in this Agreement based upon Base Rate shall take effect at the time of such change in the Base Rate. “Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.8. “Benchmark Replacement” means with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by Agent for the applicable Benchmark Replacement Date: (a) Daily Simple SOFR; or (b) the sum of: (i) the alternate benchmark rate that has been selected by Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment. If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents “Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities. 5 |
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof). “Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date 6 |
will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks. For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). “Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.8 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.8. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. Sec. 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 Person means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person. “Borrower” shall have the meaning set forth in the preamble to this Agreement and shall extend to all of its successors and assigns expressly permitted under this Agreement. “Borrower’s Account” shall have the meaning set forth in Section 2.8. “Business Day” shall mean any day other than a day on which commercial banks in New York, New York are authorized or required by law to close. “Calculation Period” shall have the meaning set forth in the definition of “Applicable Margin”. “Capital Lease” shall mean any lease of any property (whether real, personal or mixed) that, in conformity with GAAP, should be accounted for as a capital lease. “Capital Lease Obligations” shall have the meaning provided in sub-clause (c) of the definition of “Indebtedness”. “Cash Equivalents” shall mean: (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within two (2) years from the date of acquisition thereof; (b) commercial paper maturing no more than one (1) year from the date issued and, at the time of acquisition, having a rating of at least A-1 from Standard & Poor’s Ratings Service or at least P-1 from Xxxxx’x Investors Service, Inc.; (c) certificates of deposit or bankers’ acceptances maturing within one (1) year from the date of issuance thereof issued by, or overnight reverse repurchase agreements from, any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia having combined capital and surplus of not less than $500,000,000 and whose 7 |
short-term debt obligations are rated at least P-1 by Xxxxx’x Investors Service, Inc. or at least A-1 by Standard & Poor’s Ratings Service; (d) up to $100,000 per institution and up to $1,000,000 in the aggregate in (i) short-term debt obligations issued by any local commercial bank or trust company located in those areas where Borrower conducts its business, whose deposits are insured by the Federal Deposit Insurance Corporation, or (ii) commercial bank-insured money market funds, or any combination of investments described in clauses (i) and (ii); (e) overnight investments with such financial institutions having a short term deposit rating of at least P-1 by Xxxxx’x Investors Service, Inc. or at least A-1 by Standard & Poor’s Ratings Service, (f) money market mutual funds that (i) invest solely in the investments described in clauses (a) through (e) above or (ii) (A) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, (B) are rated at least Aaa by Xxxxx’x Investors Service, Inc. and at least AAA by Standard & Poor’s Ratings Service and (C) have portfolio assets of not less than $5,000,000,000, (g) marketable corporate bonds for which an active trading market exists and price quotations are available, in each case maturing within one (1) year from the date of acquisition thereof and issued by Persons that are not Affiliates of Borrower and where such Persons (i) have a long-term credit rating of at least A+ from Standard & Poor’s Ratings Service or A1 from Xxxxx’x Investors Service, Inc., (h) marketable direct obligations issued by any state of the United States of America or the District of Columbia or any public instrumentality thereof, in each case maturing within two (2) years from the date of acquisition thereof and, at the time of acquisition, having a rating of at least A-1 from Standard & Poor’s Ratings Service or at least P-1 from Xxxxx’x Investors Service, Inc., and (i) deposit accounts maintained with (x) any commercial bank that satisfies the criteria described in clause (c) above, or (y) any other commercial bank organized under the laws of the United States of America or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation. “Casualty Event” means any event that gives rise to the receipt by Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards arising from any damage to, destruction of, or other casualty or loss involving, or any seizure, condemnation, confiscation or taking under power of eminent domain of, or requisition of title or use of or relating to or in respect of any equipment, fixed assets or Real Property (including any improvements thereon) of Borrower or any such Restricted Subsidiary. “CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§9601 et seq. “CFC” shall mean a Subsidiary of Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code. “Change of Control” shall mean any of the following: (a) any person or group of persons (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of forty percent (40%) or more of the voting Equity Interests of Borrower (excluding any such Equity Interests acquired by any employee of the Loan Parties or their Affiliates pursuant to stock option and other compensation plans and benefit programs or agreements approved by Borrower’s board of directors (or equivalent governing body)); (b) any person or group of persons shall have acquired, by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, control over the Equity Interests of such persons entitled to vote for members of the board of directors of Borrower (on a fully diluted basis and taking into account all such Equity Interests that such person or group of persons has the right to acquire 8 |
pursuant to any option right) representing forty percent (40%) or more of the combined voting power of such Equity Interests; or (c) Borrower fails to directly or indirectly own and control one hundred percent (100%) of each class of the outstanding Equity Interests of each other Loan Party, except in connection with a transaction permitted under this Agreement. “Closing Date” shall mean the date on which all of the conditions precedent set forth in Section 8.1 shall have been satisfied or waived by Agent and, as applicable, the Lenders or the Required Lenders, which date is December 16, 2021. “Code” shall mean the Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, and any successor statute of similar import, and the rules and regulations thereunder, as from time to time in effect. “Collateral” shall mean and include, with respect to each Loan Party: (a) all Receivables; (b) all Equipment; (c) all General Intangibles (including, without limitation, all Intellectual Property); (d) all chattel paper; (e) all Inventory; (f) all instruments; (g) all goods; (h) all Investment Property, including, without limitation, all Subsidiary Stock; (i) Equity Interests; (j) all money, cash and Cash Equivalents; (k) all letters of credit, letter-of-credit rights and supporting obligations; (l) all deposit accounts and securities accounts with any bank or other financial institution or securities intermediary (including all cash, Cash Equivalents, financial assets, negotiable instruments and other evidence of payment, and other funds on deposit or credited thereto); (m) all commercial tort claims, including those specified on Schedule 1.2(a); and (n) all of the Proceeds and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or commercial tort claims covering or relating to any or all of the foregoing, and any and all Receivables, books and records, chattel paper, deposit accounts, Equipment, instruments, goods, fixtures, General Intangibles, Inventory, Investment Property, Intellectual Property, securities accounts, Equity Interests, letters of credit, letter-of-credit rights, supporting obligations, money, cash, Cash Equivalents or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, the proceeds of any 9 |
award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein, and the proceeds thereof, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, or otherwise with respect to any of the foregoing (the “Proceeds”). Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Investment Property or proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to any Loan Party or Agent from time to time with respect to any of the Investment Property. Notwithstanding any of the other provisions set forth in this Agreement, this Agreement shall not constitute a grant of a security interest in, and “Collateral” shall not include: (A) any property to the extent that such grant of a security interest is prohibited by any Applicable Law or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, lease, permit, license or license agreement, except to the extent that such Applicable Law or the term in such contract, lease, permit, license or license agreement is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other Applicable Law (including the Bankruptcy Code) or principles of equity; provided, however, that such security interest shall attach immediately at such time as such Applicable Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences; and provided, further, that the foregoing shall not be deemed to limit, impair, or otherwise affect Agent’s continuing security interests in and Liens upon any rights or interest of any Loan Party in or to (i) monies due or to become due under or in connection with any described contract, lease, permit, license or license agreement (including, without limitation, in respect of any Receivables or proceeds of Inventory), or (ii) any proceeds from the sale, license, lease or other disposition of any such contract, lease, permit, license or license agreement; (B) interests in Real Property; (C) motor vehicles and other assets subject to certificates of title, (D) Subsidiary Stock in excess of 65% of the voting Equity Interests of any FSHCO or CFC to the extent such action would, in the good faith judgment of Borrower, result in adverse Tax consequences to Borrower or any of its direct or indirect beneficial owners; (E) any assets to the extent that the costs, tax consequences or regulatory consequences to any Loan Party (or any of its equity holders) of obtaining such a security interest or the perfection thereof shall exceed the benefit of the collateral security provided to Agent, as reasonably agreed upon by Agent and Borrower; (F) any asset subject to capital leases and purchase money financing to the extent such capital leases and purchase money financing are permitted under this Agreement and prohibit the granting of a Lien; (G) any application for registration of a trademark filed with the USPTO on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is accepted by the USPTO, at which time such trademark shall automatically become part of the Collateral and subject to the security interest pledged; (H) Excluded Accounts; (I) Equity Interests of any Subsidiary that is a direct or indirect Subsidiary of any FSHCO or CFC; and (J) for the avoidance of doubt, the Equity Interests of Borrower (clauses (A) through (J) above, collectively, the “Excluded Property”); provided that “Excluded Property” shall not include any Proceeds, products, substitutions or replacements of Excluded Property (unless such Proceeds, products, substitutions or replacements would otherwise constitute Excluded Property). “Collateral Agent” shall mean HSBC, in its capacity as collateral agent for Agent, the Issuer and the Lenders, and its successors and permitted assigns. 10 |
11 Greater than or equal to 0.75:1.00 but less than 1.50:1.00 COMMITMENT FEE PERCENTAGE 0.30% “Commitment Fee Percentage” shall mean, as of the most recent Adjustment Date, the applicable percent per annum set forth in the pricing table set forth below corresponding to the Secured Net Leverage Ratio for the Calculation Period: Greater than or equal to 1.50:1.00 but less than 2.25:1.00 0.35% Less than 0.75:1.00 Greater than or equal to 2.25:1.00 0.25% 0.35% SECURED NET LEVERAGE RATIO provided that for the period from the Closing Date through and including the first Adjustment Date following the Closing Date, the Commitment Fee Percentage shall be 0.25%. “Commitment Percentage” of any Lender shall mean each percentage set forth below such Lender’s under the applicable heading on Schedule 1.1 to this Agreement as same may be adjusted upon any assignment by a Lender pursuant to Section 15.3 or upon the making of an Incremental Revolving Commitment pursuant to Section 2.4. “Commitment Transfer Supplement” shall mean a document in the form of Exhibit I, properly completed and otherwise in form and substance satisfactory to Agent by which the Purchasing Lender purchases and assumes a portion of outstanding Advances and the obligation of Lenders to make Advances under this Agreement. “Commitments” shall mean, as to any Lender, its obligation to make Advances (including participating in Letters of Credit) in an aggregate amount not to exceed at any one time outstanding the amount set forth below such Lender’s name under the applicable heading on Schedule 1.1 to this Agreement under the heading “Commitment Amount”, as same may be adjusted upon any assignment by a Lender pursuant to Section 15.3 or upon the making of an Incremental Revolving Commitment pursuant to Section 2.4. “Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended from time to time, and any successor statute. “Compliance Certificate” shall mean a certificate of an Authorized Officer of Borrower in the form of Exhibit B hereto. “Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of 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 “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept 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 Section 3.8 and other technical, administrative or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or if Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). “Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Consents” shall mean all filings and all governmental or regulatory licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Bodies and other third parties, domestic or foreign, necessary to carry on any Loan Party’s business or necessary (including to avoid a conflict or breach under any agreement, instrument, other document, license, permit or other authorization) for the execution, delivery or performance of this Agreement, the other Loan Documents, including any Consents required under all applicable federal, state or other Applicable Law. “Consolidated EBITDA” shall mean, for any Person and its Subsidiaries (other than any Unrestricted Subsidiaries), for any fiscal period, an amount equal to the sum of: a) Consolidated Net Income for such period, plus b) solely to the extent deducted in determining Consolidated Net Income for such period, and without duplication, i. Consolidated Interest Expense, ii. provision for Taxes imposed on Borrower and its Subsidiaries based on income or profits or capital as determined on a consolidated basis in accordance with GAAP, including, without limitation, federal, state, local, foreign, franchise, excise, value added, and similar taxes and foreign withholding taxes paid or accrued during such period including penalties and interest related to such taxes or arising from any tax examinations and any tax distributions related to the foregoing or otherwise permitted under this Agreement, and iii. depreciation and amortization (including amortization of deferred financing fees) determined on a consolidated basis in accordance with GAAP, plus c) except with respect to clauses (iii), (v) and (vi) of this clause (c), to the extent deducted in determining Consolidated Net Income for such period (if applicable), and without duplication, i. expenses, losses, charges or write-downs deemed unusual in nature or infrequent in occurrence in accordance with GAAP, ii. non-cash charges, expenses or losses, including, without limitation, any non-cash compensation, non-cash translation (gain) loss and non-cash expense relating to the vesting of warrants (except to the extent such non-cash charge represents an accrual for a future cash charge), iii. restructuring, integration, business optimization costs, costs related to undertaking cost saving initiatives, operating expense reductions, operating improvements and other 12 |
synergies, retention, recruiting, relocation and other types of bonuses and expenses, and severance costs, iv. any costs, fees (including, without limitation, reasonably documented board and consultant fees) and expenses in connection with (i) the negotiation, execution and delivery of the Loan Documents, any other agreements entered into in connection therewith and the consummation of the transactions on the Closing Date and (ii) Permitted Acquisitions, Investments, dispositions (other than ordinary course dispositions), issuance, repayment, amendments or modifications, negotiation, forbearance, extension or waiver of Indebtedness or issuance of Equity Interests, in each case whether or not consummated; provided that the aggregate amount added back pursuant to this clause (iv) in respect of any such transaction not permitted by this Agreement shall not exceed 5.0% of Consolidated EBITDA after giving effect to such add-back and all other add-backs contemplated in this definition, v. “run rate” cost savings, operating savings, operating expense reductions and cost synergies from transactions permitted under this Agreement projected by Borrower in good faith to result from actions taken during such period to the extent Borrower reasonably expects to realize such savings, reductions and synergies within twenty-four (24) months of the date of taking such action (calculated on a pro forma basis as though such savings, reductions and synergies have been realized on the first day of such period, net of the aggregate amount of actual savings, reductions and synergy benefits realized) so long as such savings, reductions and synergies are reasonably identifiable, factually supported and set forth in reasonable detail in the applicable compliance certificate for such period; provided that, with respect to this clause (v), to the extent that such savings, reductions or synergies are not reasonably expected by Borrower to be realized within twenty-four (24) months of the date of taking such action, such savings, reductions and synergies shall not be included in this definition of “Consolidated EBITDA” for any period thereafter, vi. all adjustment of the type set forth in any quality of earnings report or other report conducted by any financial advisor or operational consultant that is nationally or regionally recognized, vii. (1) proceeds of business interruption insurance that are received and/or (2) charges, losses or expenses to the extent paid for, indemnified, insured or reimbursed by a third party, in each case, in cash (to the extent not directed to be paid by Borrower to a third party) or, so long as Borrower has made a determination that a reasonable basis exists that applicable insurance, payment, indemnification and/or reimbursement will occur within 365 days from the date of the underlying charge, loss or expense, and only to the extent that such amount is (A) not denied by the insurer or other applicable party in writing within 180 days and (B) in fact paid, 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 paid, indemnified or reimbursed within such 365 days), and viii.fees payable under Section 3.2, minus d) 13 |
i) the sum of income and gain items corresponding to those referred to in clauses (c)(i) and (c)(ii) above, ii) any extraordinary, one-time or non-recurring gains, provided that, notwithstanding the foregoing, (1) the aggregate amount added back (excluding non-cash amounts) to the extent supported with reasonable documentation made pursuant to clauses (i), (iii), (iv), (v), and (vi) shall not in any event exceed 15.0% of Consolidated EBITDA after giving effect to such add-backs and all other add-backs contemplated hereby, and (2) no cap or limitation shall apply with respect to non-cash amounts added back to Consolidated Net Income. Notwithstanding anything to the contrary contained herein, if during any applicable period any Loan Parties shall have consummated a Permitted Acquisition, or any sale, transfer or other disposition of any Person, business, property or assets, Consolidated EBITDA shall be calculated on a pro forma basis with respect to such Person, business, property or assets so acquired or so disposed of. “Consolidated Funded Debt” shall mean, as of any date of determination, without duplication, all Indebtedness of any Person and its Subsidiaries (other than any Unrestricted Subsidiaries) of the type described in clauses (a), (b), (c), (e), (f) (only with respect to unreimbursed amounts thereunder), and (h) (except to the extent relating to Indebtedness of the type described in clause (d) of the definition of Indebtedness) of the definition of Indebtedness and all guarantees by Borrower and its Subsidiaries of the foregoing types of Indebtedness, in each case, measured on a consolidated basis as of such date. “Consolidated Interest Expense” means, for any fiscal period, Interest Expense of any Person and its Subsidiaries (other than any Unrestricted Subsidiaries) on a consolidated basis as shown in the profit and loss statement for that period, determined in accordance with GAAP, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under Swap Obligations, but excluding, however, (i) amortization, expensing or write-off of financing costs or debt discount or expense, (ii) the portion of the upfront costs and expenses for Swap Obligations (to the extent included in interest expense) fairly allocated to such Swap Obligations as expenses for such period, less interest income on Hedging Agreements for that period and Hedging Agreement payments received, and (iii) any fees and/or expenses paid in connection with the consummation of the closing hereof and any agency fees payable to the Agent in connection with the Loan Documents, any Permitted Acquisition or other Permitted Investments or in connection with any amendment or waiver with respect to any outstanding Indebtedness or any expenses and upfront fees (including any original issue discount) incurred in connection with any Indebtedness the proceeds of which are applied to fund any Permitted Acquisition or other Permitted Investment. “Consolidated Net Income” shall mean, with respect to any Person, for any period, the aggregate of the net income (or loss) of such Person and its Subsidiaries (other than any Unrestricted Subsidiaries), on a consolidated basis, for such period, excluding to the extent included therein any extraordinary, one-time or non-recurring gains, after deducting all charges which should be deducted before arriving at the net income (or loss) for such period including the Provision for Taxes for such period, all as determined in accordance with GAAP; provided that, (a) the net income of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid or payable to such Person or a majority-owned Subsidiary of such Person; (b) the effect of any change in accounting principles adopted by (or applicable to) such Person or its Subsidiaries after the date hereof (including any cumulative effects resulting from changes in purchase accounting principles) shall be excluded; (c) the net income (if positive) of any majority-owned Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such majority-owned Subsidiary to such Person or to any other majority-owned 14 |
Subsidiary of such Person is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such majority-owned Subsidiary shall be excluded; and (d) the net income (or loss) of any Person accrued prior to the earlier of (i) the date such Person becomes a Subsidiary of Borrower or any of its consolidated Subsidiaries or (ii) the date such Person is merged into or consolidated with Borrower or any of its consolidated Subsidiaries or (iii) the date such Person’s assets are acquired by Borrower or any of its consolidated Subsidiaries, in each case pursuant to a Permitted Acquisition, shall be included as if such Permitted Acquisition occurred on the first day of such period. For the purpose of this definition, net income excludes any gain together with any related Provision for Taxes for such gain realized upon the sale or other disposition of any assets other than in the ordinary course of business or of any Equity Interests of such Person or a Subsidiary of such Person. “Consolidated Total Assets” shall mean, as of any date of determination, the amount that would, in accordance with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of Borrower and its Restricted Subsidiaries at such date. “Contract Rate” has the meaning specified therefor in Section 3.1 of this Agreement. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Controlled Group” shall mean, at any time, the Loan Parties and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with any Loan Party, are treated as a single employer under Section 414(b) or Section 414(c) of the Code (or, solely for purposes of Section 412 of the Code, under Section 414(m) or (o) of the Code). “Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(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) 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 therefor in Section 15.20 of this Agreement. “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if Agent decides that any such convention is not administratively feasible for Agent, then Agent may establish another convention in its reasonable discretion. “Default” shall mean an event, circumstance or condition which, with the giving of notice or passage of time or both, would constitute an Event of Default. 15 |
“Default Rate” shall have the meaning set forth in Section 3.1. “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” shall means, subject to Section 2.16(e), any Lender that (a) has failed to (i) fund all or any portion of any Advance within two (2) Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies Agent and Borrower in writing that such failure is the result of such Xxxxxx’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, the Issuer, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified Borrower, Agent or the Issuer or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within two (2) Business Days after written request by Agent or Borrower, to confirm in writing to Agent and 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 Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under the Bankruptcy Code of the United States of America, or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect, (ii) become the subject of a Bail-In Action or (iii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Body 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 Body) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(e)) upon delivery of written notice of such determination to Borrower, the Issuer, each Swingline Lender and each Lender. “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) matures or is mandatorily redeemable (other than solely for Equity Interests which do not otherwise constitute Disqualified Equity Interests and cash in lieu of fractional shares), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Advances and all other Obligations that are accrued and payable and the termination of the Revolving Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Equity Interests which do not otherwise constitute Disqualified Equity Interests and cash in lieu of fractional shares), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness (which is not permitted under Section 7.7) or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Termination Date; provided, however, that only the portion of such Equity Interests which 16 |
so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Equity Interests. “Disqualified Institutions” shall mean (a) any Person designated by Borrower in writing to the Agent prior to the Closing Date (and any Affiliate thereof clearly identifiable as an Affiliate solely on the basis of the similarity of its name), (b) any Person that is or becomes a competitor designated by Borrower in writing at any time (and any Affiliate thereof clearly identifiable as an Affiliate solely on the basis of the similarity of its name), (c) additional competitors designated by Borrower in writing at any time (and any Affiliate thereof clearly identifiable as an Affiliate thereof solely on the basis of the similarity of its name), and (d) any known Affiliate of a Person described in clauses (a) and (b) above identified in writing by Borrower to the Agent at any time; provided no designation shall have retroactive effect to any prior assignment to any Lender permitted hereunder or under the Loan Documents (but further assignments and participations shall be prohibited); and provided further that any addition to the Disqualified Institutions made in accordance with this paragraph shall not be effective until the 3rd Business Day following the Agent’s receipt of written notice of such addition. For the avoidance of doubt, the Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions under the Loan Documents relating to Disqualified Institutions. “Dollars” and the sign “$” shall mean lawful money of the United States of America. “Domestic Rate Loan” shall mean any Advance that bears interest based upon the Base Rate. “Domestic Subsidiary” of any Person, shall mean any Subsidiary of such Person that is organized or incorporated in the United States or any State or territory thereof. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” shall mean 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. “Election Period” shall have the meaning set forth in Section 2.4(c). “Eligible Assignee” shall have the meaning set forth in Section 15.3 (c). “Eligible Party” means an “eligible contract participant” for purposes of Section 1a(18) of the Commodity Exchange Act, regulations promulgated thereunder and binding guidance thereunder promulgated by the Commodity Futures Trading Commission. “Environmental Laws” shall mean all federal, state and local environmental, land use, zoning, health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating to the protection of the environment and/or governing the use, storage, treatment, generation, transportation, processing, 17 |
handling, production or disposal of Hazardous Substances and the rules, regulations, policies, guidelines, interpretations, decisions, orders and directives of federal, state and local governmental agencies and authorities with respect thereto. “Equipment” shall mean and include all of each Loan Party’s goods (other than Inventory) whether now owned or hereafter acquired and wherever located including, without limitation, all equipment, machinery, apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts, accessories and all replacements and substitutions therefor or accessions thereto. “Equity Interests” of any Person shall mean any and all shares, rights to purchase, options, warrants, general, limited or limited liability partnership interests, member interests, participation or other equivalents of or interest in (regardless of how designated) equity of such Person, whether voting or nonvoting, including common stock, preferred stock, convertible securities or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act). “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and the rules and regulations promulgated thereunder. “Erroneous Payment” has the meaning assigned to it in Section 14.15(a). “Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 14.15(d)(i). “Erroneous Payment Impacted Class” has the meaning assigned to it in Section 14.15(d)(i). “Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 14.15(d)(i). “Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 14.15(e). “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. “Event of Default” shall mean the occurrence of any of the events set forth in Article X. “Exchange Act” shall mean the Securities Exchange Act of 1934, together with all rules, regulations and interpretations thereunder or related thereto. “Excluded Accounts” shall mean collectively, payroll accounts, escrow accounts, foreign accounts, fiduciary accounts, trust accounts, zero balance accounts and other accounts held exclusively for the benefit of an unaffiliated third party, including Tax escrow accounts, and employee benefits accounts maintained in the ordinary course of business. “Excluded Property” has the meaning assigned to it in the definition of “Collateral”. “Excluded Subsidiary” shall mean any Subsidiary that is (a) a Foreign Subsidiary, (b) an Unrestricted Subsidiary, (c) any Subsidiary acquired by Borrower that, at the time of the relevant acquisition, is an obligor in respect of assumed Indebtedness that is permitted under Section 7.7 and was not incurred or modified in contemplation of such acquisition to the extent (and solely for so long as) the documentation governing such assumed Indebtedness prohibits such Subsidiary from providing a guarantee hereunder, (d) prohibited by applicable law, rule, regulation from guaranteeing the facilities under this Agreement, or which would require governmental (including regulatory) consent, approval, 18 |
license or authorization to provide a guarantee in each case, unless, such consent, approval, license or authorization has been received (but without obligation to seek the same), (e) prohibited from guaranteeing the Obligations by any contractual obligation in existence (x) on the Closing Date or (y) at the time of the acquisition of such Subsidiary after the Closing Date (to the extent such prohibition was not entered into in contemplation of such acquisition), (f) a not-for-profit Subsidiary, (g) any Special Purpose Subsidiary, (h) an FSHCO, (i) any Domestic Subsidiary that is a direct or indirect Subsidiary of an FSHCO or CFC, (j) any Subsidiary regulated as an insurance company or any other captive insurance Subsidiary, (k) any Immaterial Subsidiary, and (l) any other Subsidiary with respect to which, in the reasonable judgment of the Agent and Borrower, the cost or other consequences (including any adverse Tax consequences) of guaranteeing the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom; provided that, notwithstanding the above, if a Subsidiary executes the Guaranty as a “Guarantor” then it shall not constitute an “Excluded Subsidiary” (unless released from its obligations under the Guaranty as a “Guarantor” in accordance with the terms hereof and thereof). “Excluded Swap Obligations” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Person of, or the grant by such Person of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal or unenforceable 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 Person’s failure for any reason not to constitute an Eligible Party. “Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income or net profits (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in an Advance or Commitment (other than pursuant to an assignment request by Borrower hereunder) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.10, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.10(g) and (d) any withholding Taxes imposed under FATCA. “Existing Convertible Notes” shall mean, collectively, the 2023 Convertible Notes, the 2025 Convertible Notes, and the 2027 Convertible Notes. “Existing Subsidiary Guarantees” means each of those guaranty obligations listed on Schedule 7.3(b). “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code (or any amended or successor version described above), and any U.S. or non-U.S. fiscal or regulatory legislation, rules, guidance, notes or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Body 19 |
entered into in connection with the implementation of such sections of the Code or analogous provisions of non-U.S. law. “FCPA” shall have the meaning set forth in Section 5.23. “Federal Funds Rate” shall mean, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day which is a Business Day, the average of quotations for such day on such transactions received by Agent from three (3) Federal funds brokers of recognized standing selected by Agent. “Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source. “Fee Letter” shall mean the Amended and Restated Fee Letter dated as of as of the date hereof between Borrower and HSBC. “First Amendment” means that certain First Amendment to Loan and Security Agreement, dated as of the First Amendment Effective Date, by and among the Loan Parties party thereto and the Lenders party thereto (which Lenders, shall, for the avoidance of doubt, constitute at least the Required Lenders). “First Amendment Convertible Notes” means, collectively, any Existing Convertible Notes, any Refinanced Existing Convertible Notes Indebtedness issued as a replacement to all or a portion of the Existing Convertible Notes, and any Permitted Convertible Indebtedness, in each case, in existence on or after the First Amendment Effective Date. “First Amendment Effective Date” shall have the meaning set forth in the First Amendment. “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to Term SOFR. “Foreign Lender” means a Lender that is not a U.S. Person within the meaning of Section 7701(a)(30) of the Code. “Foreign Subsidiary” of any Loan Party, shall mean any Subsidiary of such Loan Party that is not a Domestic Subsidiary. “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuer, such Defaulting Lender’s Commitment Percentage of the outstanding Letter of Credit exposure with respect to Letters of Credit issued by such Issuer other than Letter of Credit exposure 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 any Swingline Lender, such Defaulting Lender’s Commitment Percentage of outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders. “FSHCO” shall mean any Domestic Subsidiary that has no material assets other than Equity Interests, or Equity Interests and Indebtedness in one or more Foreign Subsidiaries that are CFCs. 20 |
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its business. “GAAP” shall mean generally accepted accounting principles in the United States of America in effect from time to time, consistently applied. “General Intangibles” shall mean and include, as to each Loan Party, all of such Loan Party’s general intangibles, whether now owned or hereafter acquired including, without limitation, all payment intangibles, choses in action, commercial tort claims, causes of action, corporate or other business records, inventions, designs, patents, patent applications, equipment formulations, manufacturing procedures, quality control procedures, trademarks, trademark applications, service marks, trade secrets, goodwill, copyrights, design rights, software, computer information, source codes, codes, records and updates, registrations, licenses, franchises, customer lists, tax refunds, tax refund claims, computer programs and computer software, all claims under guaranties, security interests or other security held by or granted to such Loan Party to secure payment of any of the Receivables by a customer, all rights of indemnification and all other intangible property of every kind and nature (other than Receivables). “Governmental Body” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, municipal or any other level, 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). “Guarantor” shall mean (i) on the Closing Date, the Restricted Subsidiaries of Borrower listed on Schedule 1.2(b) and (ii) after the Closing Date, (x) each other Restricted Subsidiary of Borrower that is not an Excluded Subsidiary, and (y) any other Person who may hereafter guarantee payment or performance of the whole or any part of the Obligations, and “Guarantors” means collectively all such Persons. For the avoidance of doubt, no Excluded Subsidiary shall be a Guarantor. “Guaranty” shall mean any guaranty of the Obligations executed by a Guarantor in favor of Agent for its benefit and for the ratable benefit of Lenders, as the same may be amended, restated, amended and restated, modified and/or supplemented from time to time. “Hazardous Substance” shall mean, without limitation, any flammable explosives, radon, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum products, methane, hazardous materials, hazardous wastes, hazardous or toxic substances or related materials as defined in CERCLA, the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., or any other applicable Environmental Law and in the regulations adopted pursuant thereto. “Hedging Agreement” shall mean any interest rate exchange, collar, cap, swap, adjustable strike cap, adjustable strike corridor or similar agreement entered into by Borrower or any of its Subsidiaries in order to provide protection to, or minimize the impact upon, Borrower or any Subsidiary thereof against fluctuations in interest rates, currency exchange rates or commodity prices in the ordinary course of Borrower’s or such Subsidiary’s business and not for speculative purposes. “HSBC” shall have the meaning set forth in the preamble to this Agreement and shall include its successors and permitted assigns. 21 |
“Immaterial Subsidiary” shall mean any Restricted Subsidiary as to which, as of any relevant date of determination, (a) the consolidated total assets of such Restricted Subsidiary and its Subsidiaries (on a consolidated basis and giving effect to intercompany eliminations) and all other Immaterial Subsidiaries as of such date (and their respective Subsidiaries (on a consolidated basis and giving effect to intercompany eliminations)), do not exceed an amount equal to 5.0% of the Consolidated Total Assets (giving effect to intercompany eliminations) of Borrower and its Subsidiaries as of the last day of the most recently ended fiscal quarter, (b) the revenues of such Restricted Subsidiary and its Subsidiaries (on a consolidated basis and giving effect to intercompany eliminations) for such fiscal quarter and all other Immaterial Subsidiaries as of such date (on a consolidated basis and giving effect to intercompany eliminations) for such fiscal quarter do not exceed an amount equal to 5.0% of the consolidated revenues (giving effect to intercompany eliminations) of Borrower and its Restricted Subsidiaries for such quarter, and (c) does not own any material Intellectual Property at such time; provided, if at any time after the Closing Date, Immaterial Subsidiaries comprise in the aggregate more than 12.5% of the consolidated revenues or 12.5% of the Consolidated Total Assets of Borrower and its Restricted Subsidiaries, then Borrower shall designate in writing to the Agent that one or more of such Subsidiaries is no longer an Immaterial Subsidiary such that the foregoing condition ceases to be true. As of the Closing Date, Ultratech Intl Inc. is the only Immaterial Subsidiary. “Increase Effective Date” shall have the meaning set forth in Section 2.4(d). “Incremental Revolving Commitment” shall have the meaning set forth in Section 2.4(b). “Indebtedness” of a Person at a particular date shall mean shall mean, without duplication: (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person in respect of the deferred purchase price of property or services or in respect of warrants (other than trade payables incurred in the ordinary course of business, but, subject to clause (a) of the last sentence of this definition, including any obligations in respect of earn-outs and other contingent acquisition consideration), (d) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (e) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP (“Capital Lease Obligations”) of such Person, (f) all obligations, contingent or otherwise, of such Person in respect of Letters of Credit, acceptances or similar extensions of credit, (g) all guarantees of such Person of the type of Indebtedness described in clauses (a) through (f) above, (h) all Indebtedness of a third party described in clauses (a) through (f) above secured by any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person; provided that the amount of any such Indebtedness under this clause (h) shall be deemed to be the lesser of (A) the total amount of third party Indebtedness secured by such Lien and (B) the fair market value of the property subject to such Lien, (i) all obligations of such Person in respect of Disqualified Equity Interests, and (j) the hedge termination value owed by of such Person under any Hedging Agreements. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, Indebtedness shall not include (a) obligations of such Person in respect of earn-outs, other contingent acquisition consideration, and warrants until such obligations become liabilities on the balance sheet of such Person in accordance with GAAP (except to the extent such obligations that are liabilities on the balance sheet of such Person are payable solely in Equity Interests) and (b) Indebtedness pursuant to earn-outs and other contingent acquisition consideration, in each case, that are not past due, and (c) Indebtedness (including as a result of any lease that would have been treated as an operating lease for purposes of GAAP as in effect on December 14, 2018), arising as a result of any changes in GAAP which would classify any operating leases so characterized in accordance 22 |
with GAAP (as GAAP is in effect as of December 15, 2018) as Capital Lease Obligations (or the equivalent) required to be reflected on a consolidated balance sheet of Borrower in accordance with GAAP. “Indemnified Taxes” shall means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under this Agreement or any other Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. “Indemnitee” shall have the meaning set forth in Section 15.5(a). “Information Certificate” shall mean the Information Certificate and the responses thereto provided by the Loan Parties and delivered to Agent. “Intellectual Property” shall mean rights in property constituting under any Applicable Law a patent, patent application, copyright, trademark, service mark, trade name, mask work, or trade secret. “Intellectual Property Agreements” shall mean any intellectual property security agreement entered into between a Loan Party and Agent pursuant to the terms hereof in form and substance satisfactory to Agent, together with each other intellectual property security agreement and supplement thereto. “Interest Coverage Ratio” means, with respect to the last day of any fiscal period, the ratio of Consolidated EBITDA for the four (4) consecutive fiscal quarters ending on or immediately prior to such fiscal period to Consolidated Interest Expense for the four (4) consecutive fiscal quarters ending on or immediately prior to such fiscal period. “Interest Expense” shall mean, for any period, as to any Person, as determined in accordance with GAAP, the total interest expense of such Person (including the interest component of Capital Leases for such period and capitalized interest for such period), whether paid or accrued during such period but without duplication, excluding interest paid in property other than cash. “Interest Payment Date” means (a) as to any Domestic Rate Loan, the last Business Day of each March, June, September and December and the Termination Date and (b) as to any SOFR Loan, the last day of each Interest Period therefor and, in the case of any Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at three month intervals after the first day of such Interest Period, and the Termination Date. “Interest Period” means, as to any Advance, the period commencing on the date of such Advance and ending on the last day of such period as selected by Borrower pursuant to the provisions below (in each case, subject to the availability thereof), as specified in the applicable Notice of Borrowing or Notice of Conversion; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, (iii) no Interest Period shall extend beyond the Termination Date and (iv) no tenor that has been removed from this definition pursuant to Section 3.8 shall be available for specification in such Notice of Borrowing or Notice of Conversion. For purposes hereof, the date of an Advance initially shall be the date on which such Advance is made and thereafter shall be the effective date of the most 23 |
24 SECURED NET LEVERAGE RATIO LETTER OF CREDIT FEE PERCENTAGE recent conversion or continuation of such Advance. The duration of each Interest Period for any SOFR Loan shall be for a number of months selected by Borrower upon notice as set forth in Section 2.2(b). “Inventory” shall mean and include all of each Loan Party’s now owned or hereafter acquired goods, merchandise and other personal property, wherever located, to be furnished under any consignment arrangement, contract of service or held for sale or lease, all raw materials, work in process, finished goods and materials and supplies of any kind, nature or description which are or might be used or consumed in such Loan Party’s business or used in selling or furnishing such goods, merchandise and other personal property, all other inventory of each Loan Party, and all documents of title or other documents representing them. “Investment” is any beneficial ownership interest in any Person (including any Equity Interests), and any loan, advance or capital contribution to any Person. “Investment Property” as defined in the UCC and shall include all of each Loan Party’s now owned or hereafter acquired securities (whether certificated or uncertificated), securities entitlements, securities accounts, commodities contracts, commodities accounts, stocks, mutual fund shares, money market shares and U.S. Government securities. “Issuer” shall mean any Person who issues a Letter of Credit and/or accepts a draft pursuant to the terms thereof (it being agreed that so long as HSBC shall be Agent or a Lender, then the Issuer shall be HSBC); provided, however, that in the event that HSBC is neither Agent nor a Lender, the “Issuer” with respect to all subsequently issued Letters of Credit shall be a Lender selected by Xxxxxxxx and that agrees to be an Issuer hereunder. “Joint Bookrunners” shall have the meaning ascribed to such term in the preamble. “Joint Lead Arrangers” shall have the meaning ascribed to such term in the preamble. “Junior Lien Indebtedness” means any Indebtedness of the Loan Parties that is secured by a Lien on the Collateral that is contractually junior to the Liens securing the Obligations to the written satisfaction of Agent and the Required Lenders. “Lender” and “Lenders” shall have the meaning ascribed to such term in the preamble to this Agreement and shall include each Person which becomes a transferee, successor or assign of any Lender. “Lender-Provided Hedge” shall mean a Hedging Agreement or foreign exchange transaction which is provided by any Lender or any direct or indirect Subsidiary or Affiliate of any Lender (or any Person that was a Lender or a Subsidiary or Affiliate of a Lender at the time of entering into such Hedging Agreement), which is entered into for hedging (rather than speculative) purposes. “Letter of Credit and Guarantee Fees” shall have the meaning set forth in Section 3.2. “Letter of Credit Application” shall have the meaning set forth in Section 2.10. “Letter of Credit Fee Percentage” shall mean, as of the most recent Adjustment Date, the applicable percent per annum set forth in the pricing table set forth below corresponding to the Secured Net Leverage Ratio for the Calculation Period: |
25 Greater than or equal to 0.75:1.00 but less than 1.50:1.00 1.75% Greater than or equal to 1.50:1.00 but less than 2.25:1.00 Less than 0.75:1.00 2.00% 1.50% Greater than or equal to 2.25:1.00 2.25% provided that for the period from the Closing Date through and including the first Adjustment Date following the Closing Date, the Letter of Credit Fee Percentage shall be 1.50%. “Letter of Credit Reserve” shall mean the sum of (a) the Maximum Undrawn Amount of all outstanding Letters of Credit plus (b) other than for purposes of calculating the Letter of Credit Reserve pursuant to Section 2.1(a)(2), all unpaid interest, fees and expenses related thereto. “Letters of Credit” shall have the meaning set forth in Section 2.9. “Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), charge, claim or encumbrance, or preference, priority or other security agreement or preferential arrangement held or asserted in respect of any asset of any kind or nature whatsoever including, without limitation, any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction. “Liquidity” means, as of any date of determination, the sum of (a) the aggregate amount of domestic unrestricted cash and Cash Equivalents and of Borrower and (b) the Available Amount. “Loan Documents” shall mean, collectively, this Agreement, the Notes, the Guaranty, the Information Certificate, the Fee Letter, the Intellectual Property Agreements, the Stock Pledge Agreement, and any and all other agreements, instruments and documents, including, without limitation, guaranties, pledges, powers of attorney, consents, and all other writings heretofore, now or hereafter executed by any Loan Party or any Person (as authorized by a Loan Party) or by any Person who becomes a Guarantor of the Obligations and/or delivered to Agent or any Lender in respect of the transactions contemplated by this Agreement. “Loan Party” shall mean, individually, Borrower and each Guarantor, and “Loan Parties” shall mean, collectively, Borrower and the Guarantors. “Material Adverse Effect” shall mean a material adverse effect on (a) the business, assets, or financial condition of Borrower or the Restricted Subsidiaries, taken as a whole, (b) any ability of the Loan Parties to pay the Obligations in accordance with the terms hereof, (c) Agent’s Lien on the Collateral or the priority of such Lien, or (d) the practical realization of the benefits of Agent’s and each Lender’s rights and remedies under this Agreement and the other Loan Documents (other than as the result of an action or failure to act on the part of Agent). “Material Contract” shall mean any contract or other agreement, written or oral, of any Loan Party involving monetary liability of or to any Person in an amount in excess of $10,000,000 in any fiscal |
year, other than purchase orders issued by any Loan Party in the ordinary course of its business, and any other contract or other agreement, whether written or oral, to which any Loan Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto would have a Material Adverse Effect. Notwithstanding the foregoing, no contract that gives rise to any Indebtedness of any Loan Party shall constitute a Material Contract for the purposes of this Agreement. “Material Indebtedness” means Indebtedness of Borrower or any Restricted Subsidiary in an outstanding principal amount of $10,000,000 or more in the aggregate (or the equivalent thereof in any currency other than Dollars). For purposes of determining the amount of Material Indebtedness at any time, (a) undrawn committed amounts and (b) all amounts owing to all creditors under any syndicated credit arrangement shall be included. “Maximum Revolving Advance Amount” shall mean $150,000,000, as such amount may be changed from time to time pursuant to the terms hereof (including in connection with assignments permitted hereunder and including pursuant to Section 2.4). “Maximum Swingline Loan Amount” shall mean $10,000,000. “Maximum Undrawn Amount” shall mean with respect to any outstanding Letter of Credit, the amount of such Letter of Credit that is or may become available to be drawn, including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective. “Minimum Liquidity” means, at any time during the Minimum Liquidity Period, an amount of Liquidity equal to at least the sum of (1) the then outstanding principal amount of the 2025 Convertible Notes plus (2) $75,000,000. “Minimum Liquidity Period” means the 91-day period prior to the 2025 Convertible Notes Termination Date. “Multiemployer Plan” shall mean a Plan that is a “multiemployer plan” as defined in Sections 3(37) and 4001(a)(3) of ERISA. “Multiple Employer Plan” shall mean a Plan that has two or more contributing sponsors (including any Loan Party or any member of the Controlled Group) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA. “Net Cash Proceeds” means, with respect to the sale or disposition of any asset by a Person or a Casualty Event, the sum of cash and Cash Equivalent received by such Person in connection with such sale, disposition, or Casualty Event less (i) the reasonable fees, commissions, and expenses related thereto and required to be paid by such Person in connection with such sale or disposition, less (ii) all taxes paid or reasonably estimated to be payable in connection with such sale or disposition to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and are properly attributable to such transaction, less (iii) any reserve for adjustment in respect of (x) the sale price of the property that is the subject of such sale or disposition established in accordance with GAAP and (y) any liabilities associated with such property or asset and retained by such Person after such sale or disposition, to the extent that in each case the funds described above in this clause (iii) are (x) deposited into escrow with a third party escrow agent and (y) paid to Agent as a prepayment of the applicable Obligations in accordance with Section 2.14 of this Agreement at such time when such 26 |
amounts are no longer required to be set aside as such a reserve, less (iv) any amounts used to repay or return any customer deposits required to be repaid or returned as a result of sale or disposition. “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders in accordance with the terms of Section 15.2 and (b) has been approved by the Required Lenders. “Non-Defaulting Lenders” shall have the meaning set forth in Section 2.16(b). “Non-Guarantor Acquisition” shall have the meaning set forth in the definition of “Permitted Acquisition”. “Note” or “Notes” shall mean, individually or collectively, the Revolving Credit Note and the Swingline Note. “Notice of Borrowing” shall mean a notice of borrowing provided by Borrower to Agent in substantially the form attached hereto as Exhibit E. “Notice of Conversion” shall mean a notice of conversion provided by Borrower to Agent in substantially the form attached hereto as Exhibit F. “Obligations” shall mean and include any and all of each Loan Party’s Indebtedness and/or liabilities under this Agreement or the other Loan Documents, any Lender-Provided Hedge or with respect to any Bank Product Obligation, to Agent, Lenders, the Issuer or any Affiliate of Agent, any Lender or the Issuer, of every kind, nature and description, direct or indirect, secured or unsecured, joint, several, joint and several, absolute or contingent, due or to become due, now existing or hereafter arising, contractual or tortious, liquidated or unliquidated, regardless of how such indebtedness or liabilities arise or by what agreement or instrument they may be evidenced or whether evidenced by any agreement or instrument (including all interest, fees and other amounts accruing after the commencement of any bankruptcy or similar proceeding whether or not enforceable in such proceeding) including all interest, expenses, fees, attorney’s fees or other amounts chargeable to any Loan Party pursuant to the terms of this Agreement or under any Loan Document and including all obligations of any Loan Party to Agent, Lenders or the Issuer to perform acts or refrain from taking any action; provided that the Obligations of any Guarantor shall not include any Excluded Swap Obligations. “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 this Agreement or any other Loan Document, or sold or assigned an interest in any Advance or this Agreement or any other Loan Document). “Other Taxes” shall mean any and all present or future stamp, court or documentary, intangible, recording, filing, mortgage or mortgage recording Taxes or any other excise or property Taxes, charges or similar Taxes arising from any payment made hereunder or from the execution, delivery or enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment. 27 |
“Participant” shall mean each financial institution who shall be granted the right by any Lender to participate in any of the Advances and who shall have entered into a participation agreement in form and substance satisfactory to such Lender. “Participant Register” has the meaning specified in Section 15.3(b). “Payment Office” shall mean initially 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; thereafter, such other office of Agent, if any, which it may designate by notice to the Loan Parties and to each Lender to be the Payment Office. “Payment Recipient” has the meaning assigned to it in Section 14.11(a). “PBGC” shall mean the Pension Benefit Guaranty Corporation or any successor. “Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”. “Perfection Exceptions” means that no Loan Party shall be required (and Agent shall not be authorized) to (i) enter into control agreements with respect to, or otherwise perfect any Lien by “control” (or similar arrangements) over any asset (other than certificated securities and instruments), including commodities accounts, securities accounts, deposit accounts, futures accounts, other bank accounts, cash and Cash Equivalents and accounts related to the clearing, payment processing and similar operations of Borrower and its Restricted Subsidiaries, (ii) perfect the security interest in the following (in each case, other than by the filing of a general UCC financing statement): (1) letter-of-credit rights (as defined in the UCC), (2) commercial tort claims (as defined in the UCC), (3) Fixtures (as defined in the UCC), except to the extent that the same are Equipment (as defined in the UCC) or are related to Real Property covered or intended by the Loan Documents to be covered by a mortgage and (4) all contracts and agreements between any Loan Party and one or more additional parties, (iii) send notices to account debtors or other contractual third-parties unless an Event of Default has not been cured or waived and is continuing and the Agent has exercised its rights pursuant to Article XI of this Agreement, (iv) enter into any security documents to be governed by the law of, or make any filing in, any jurisdiction other than the United States, any state thereof or the District of Columbia, (v) deliver landlord waivers, estoppels or collateral access letters or (vi) deliver any stock certificates or stock powers (or equivalent) with respect to the Equity Interests of any Immaterial Subsidiaries or Unrestricted Subsidiaries. “Pension Benefit Plan” shall mean at any time any employee pension benefit plan (including a Multiple Employer Plan, but not a Multiemployer Plan) which is covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code and either (i) is maintained by any member of the Controlled Group; or (ii) has at any time within the preceding five years been maintained by any entity which was at such time a member of the Controlled Group. “Permitted Acquisition” shall mean any acquisition by Borrower or any of its Restricted Subsidiaries of all or substantially all of the assets of any Person or a business or division of such Person (whether pursuant to a merger or other transaction) or of all or a majority of the equity of a Person in one or a series of transactions that occurs; provided that: (a) before and after giving effect to such acquisition, no Event of Default has occurred and is continuing or would result therefrom; (b) immediately before and after giving effect to such acquisition, on a pro forma basis, (i) as of the most recently ended test period for which financial statements shall have been 28 |
delivered, (calculated as if such acquisition had been made on the first day of the relevant testing period) neither of the Total Net Leverage Ratio and Secured Net Leverage Ratio exceed an amount that is 0.25:1.00 below the Total Net Leverage Ratio and Secured Net Leverage Ratio required at such time under Section 6.8, and (ii) Liquidity is not less than $75,000,000; (c) the Person or assets being acquired is in the same type of business conducted by Borrower and its Restricted Subsidiaries on the Closing Date or any other businesses reasonably related, ancillary or complementary thereto or a reasonable extension thereof; (d) such acquisition shall not be hostile and shall have been approved by the Board of Directors or other governing body of the Person whose equity or assets are proposed to be acquired to the extent required by the governing documents of the Person whose equity or assets are proposed to be acquired or by applicable law. (e) Borrower or the applicable Restricted Subsidiary complies with the requirements of Section 7.11(a); (f) Borrower and its Restricted Subsidiaries shall not make Permitted Acquisitions of Persons that do not become Guarantors or by purchase of assets that are acquired directly by Subsidiaries that are not Guarantors (each a “Non-Guarantor Acquisition”) for aggregate consideration, together with any Investments made (in each case determined as of the date of making any such Investment), in excess of the greater of (i) $25,000,000 and (ii) 25.0% of Consolidated EBITDA for the most recent four (4) consecutive fiscal quarters for which financial statements have been delivered in the aggregate outstanding at any time; and (g) if the total consideration, including the purchase price and total liabilities assumed, of any such acquisition shall equal or exceed $75,000,000, not later than five (5) Business Days prior to the anticipated closing date of the proposed acquisition, Xxxxxxxx has provided Agent a certificate of an Authorized Officer of Borrower certifying that all of the requirements set forth in this definition have been satisfied or will be satisfied on or prior to the consummation of such purchase or acquisition. “Permitted Convertible Indebtedness” means senior, unsecured Indebtedness of the Borrower that is (x) issued pursuant to and in accordance with that certain Purchase Agreement, dated as of May 16, 2023, by and between the Borrower and Barclays Capital Inc. evidencing the First Amendment Convertible Notes issued on or after the First Amendment Effective Date that are not comprised of Refinanced Existing Convertible Notes Indebtedness issued as a replacement to all or a portion of the Existing Convertible Notes, (y) convertible into shares of common stock of the Borrower (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower), cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Borrower and (z) permitted to be incurred pursuant to Section 7.7. “Permitted Dispositions” shall have the meaning set forth in Section 7.1(b). “Permitted Encumbrances” shall mean: (a) Liens granted to or in favor of Agent for the benefit of Agent, Lenders and/or the Issuer, which, in each case, secure Obligations; 29 |
(b) Liens for Taxes, assessments or other governmental charges (1) not delinquent or (2) being contested in good faith and by appropriate proceedings and with respect to which proper reserves have been taken by the applicable Loan Party; provided that no notice of any such Lien has been filed or recorded under the Code and the Treasury Regulations adopted thereunder or any other Applicable Law; (c) deposits or pledges to secure obligations under worker’s compensation, social security or similar laws, or under unemployment insurance; (d) deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of money), leases, statutory obligations, surety, appeal bonds, customs bonds and other obligations of like nature arising in the ordinary course of such Loan Party’s business; (e) judgment Liens that have been stayed or bonded or otherwise would not result in an Event of Default and mechanics’, workers’, materialmen’s or other like Liens arising in the ordinary course of such Loan Party’s business with respect to obligations which are not due or which are being contested in good faith by appropriate proceedings; (f) Liens for purchase money obligations and Capital Leases, provided that (i) the Indebtedness secured by any such Lien is permitted under Section 7.7, and (ii) such Lien encumbers only the asset so purchased; (g) leases or subleases of Real Property granted in the ordinary course of any Loan Party’s business (or, if referring to another Person, in the ordinary course of such Person’s business), and leases, subleases, non-exclusive licenses or sublicenses of personal property granted in the ordinary course of any Loan Party’s business (or, if referring to another Person, in the ordinary course of such Person’s business), if the leases, subleases, licenses and sublicenses do not prohibit granting Agent a security interest therein; (h) non-exclusive license of Intellectual Property granted to third parties in the ordinary course of business, and licenses of Intellectual Property that could not result in a legal transfer of title of the licensed property that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discrete geographical areas outside of the United States; (i) Liens that are replacements of Permitted Encumbrances to the extent that the original Indebtedness is the subject of Permitted Indebtedness and so long as the replacement Liens only encumber those assets that secured the original Indebtedness; (j) rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of deposit accounts in the ordinary course of business; (k) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness; (l) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (m) Liens existing on the Closing Date and disclosed on Schedule 7.2; 30 |
(n) other Liens securing Permitted Indebtedness as to which the aggregate outstanding amount of the obligations secured thereby at any time does not exceed the greater of (i) $15,000,000 and (ii) 2.5% of Consolidated Total Assets as of the last day of the most recently-ended test period; (o) survey exceptions, encumbrances, ground leases, easements or reservations of, or rights of others for, governmental or regulatory licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil pipelines and other similar purposes, reservations of rights, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of Real Properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially adversely interfere with the ordinary conduct of the business of such Person; (p) Liens securing Indebtedness or other obligations of Borrower or a Guarantor owing to Borrower or another Guarantor permitted to be incurred in accordance with Section 7.7; (q) Liens arising from, or from Uniform Commercial Code financing statement filings regarding, operating leases or consignments entered into by Borrower or Restricted Subsidiary in the ordinary course of business; (r) deposits made or other security provided in the ordinary course of business to secure liability to insurance carriers or under self-insurance arrangements in respect of such obligations; (s) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection; (ii) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business; and (iii) in favor of banking or other financial institutions or entities, or electronic payment service providers, arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking or finance industry; (t) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other Persons not given in connection with the issuance of Indebtedness; (ii) relating to pooled deposit or sweep accounts of Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Borrower and the Restricted Subsidiaries; or (iii) relating to purchase orders and other agreements entered into with customers of Borrower or any Restricted Subsidiary in the ordinary course of business; (u) any encumbrance or restriction (including put and call arrangements) with respect to Equity Interests of any joint venture or similar arrangement pursuant to any joint venture or similar agreement; (v) Liens on vehicles of Borrower or any Restricted Subsidiary granted in the ordinary course of business; (w) Liens arising solely by virtue of any statutory or common law provision or customary business provision relating to banker’s liens, rights of set off or similar rights; (x) Liens on securities (other than Collateral) that are the subject of repurchase agreements constituting Cash Equivalents; 31 |
(y) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes; (z) restrictive covenants affecting the use to which Real Property may be put; provided that such covenants are complied with; (aa) security given to a public utility or any municipality or Governmental Body when required by such utility or authority in connection with the operations of that Person in the ordinary course of business; (bb) zoning by-laws and other activity and land use restrictions, including, without limitation, site plan agreements, development agreements, contract zoning agreements and limitations imposed under Environmental Law to secure remedial obligations; and (cc) Liens securing Indebtedness or other obligations of any Special Purpose Subsidiary (including any precautionary Uniform Commercial Code financing statements filed in connection with any Indebtedness permitted by clause (q) of the definition of “Permitted Indebtedness”); provided that any such Liens are non-recourse to Borrower and its Restricted Subsidiaries; provided that no Real Property having a fair market value equal to or greater than $25,000,000 shall be subject to any Permitted Encumbrances except those referenced in clauses (b), (e), (f), (g), (o), (z), (aa) and (bb) above. “Permitted Indebtedness” shall mean: (a) the Obligations; (b) Indebtedness existing on the Closing Date and shown on Schedule 7.7; (c) unsecured Indebtedness to trade creditors incurred in the ordinary course of business; (d) Indebtedness of (i) any Loan Party to any other Loan Party, (ii) any Restricted Subsidiary (which is not a Loan Party) to any other Restricted Subsidiary (which is not a Loan Party), (iii) any Subsidiary (which is not a Loan Party) to any Loan Party; and (iv) any Loan Party to any Subsidiary (which is not a Guarantor); provided that (A) the aggregate principal amount of such Indebtedness under this clause (iv) does not exceed the greater of (i) $10,000,000 and (ii) 1.5% of Consolidated Total Assets as of the last day of the most recently ended test period, and (B) all Indebtedness under this clause (iv) is subordinated to the Obligations of such Loan Party under this Agreement and the other Loan Documents in a manner reasonably satisfactory to Agent; (e) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business; (f) Indebtedness secured by purchase money Liens and Capital Lease Obligations (in each case incurred prior to or within 365 days of the acquisition or lease or completion of construction, repair or replacement of, or improvement to or installation of, assets) not exceeding the greater of (i) $15,000,000 and (ii) 2.5% of Consolidated Total Assets as of the last day of the most recently-ended test period, in the aggregate outstanding at any time; 32 |
(g) Indebtedness under the Existing Convertible Notes; (h) solely to the extent they constitute Indebtedness, bank guarantees or similar instruments issued or created, or related to obligations or liabilities incurred, in the ordinary course of business, to which (i) any Loan Party or its Subsidiaries and (ii) any Lender or any of its Affiliates are a party; (i) solely to the extent they constitute Indebtedness, customer deposits and advance payments received in the ordinary course of business from customers for goods or services purchased in the ordinary course of business; (j) Indebtedness in respect of appeal, bid, performance or surety or similar bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of Borrower or any of its Subsidiaries, each incurred in the ordinary course of business, including guarantees or obligations of any Borrower or any of its Subsidiaries with respect to letters of credit supporting such bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances (in each case other than for an obligation for borrowed money); (k) Indebtedness incurred by Borrower or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit or bank guarantees or similar instruments issued in the ordinary course of business, including, without limitation, (i) letters of credit or performance or surety bonds in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance and (ii) guarantees of Indebtedness incurred by customers in connection with the purchase or other acquisition of equipment or supplies in the ordinary course of business; (l) unsecured Indebtedness consisting of interest to the extent paid-in-kind (and not in cash or Cash Equivalents) on intercompany Indebtedness; (m) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards, commercial cards (including so called “purchase cards”, “procurement cards” or “p cards”), or cash management services; (n) guarantees permitted by Section 7.3; (o) Indebtedness arising from netting services, overdraft protection or the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business (p) Indebtedness of Foreign Subsidiaries of Borrower incurred by any such Foreign Subsidiary to provide for its working capital needs in an amount not exceeding the greater of (i) $15,000,000 and (ii) 2.5% of Consolidated Total Assets as of the last day of the most recently ended test period, in the aggregate outstanding at any time; (q) Permitted Receivables Indebtedness; (r) Indebtedness incurred by Borrower or a Restricted Subsidiary as a result of leases entered into by Borrower or such Restricted Subsidiary in the ordinary course of business; 33 |
(s) Indebtedness of non-Loan Party Subsidiaries (other than Indebtedness owing to any Loan Party) not exceeding the greater of (i) $15,000,000 and (ii) 2.5% of Consolidated Total Assets as of the last day of the most recently ended test period, in the aggregate outstanding at any time; and (t) Indebtedness of Borrower or Restricted Subsidiaries not otherwise permitted by Section 7.7 not exceeding the greater of (i) $40,000,000 and (ii) 5.0% of Consolidated Total Assets as of the last day of the most recently ended test period, in the aggregate outstanding at any time; (u) any (1) refinancings, refundings, renewals or extensions of any items of Permitted Indebtedness referenced in clauses (a) through (f) and clauses (h) through (t) above or clause (v) below, provided that (x) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to all accrued and unpaid interest and premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension and (y) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms (other than, in the case of Permitted Convertible Indebtedness, the applicable settlement method for conversion of such Indebtedness) taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are not materially less favorable to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended. or (2) refinancings of Indebtedness under the Existing Convertible Notes referenced in clause (g) above so long as such refinancing complies with the terms of Section 7.15; and (v) Permitted Convertible Indebtedness in aggregate principal amount not exceeding $30,000,000. “Permitted Investments” shall mean: (a) Investments (including, without limitation, Subsidiaries) existing on the Closing Date and shown on Schedule 7.4; (b) Investments consisting of cash and Cash Equivalents; (c) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (d) Investments consisting of deposit accounts in which Agent has a perfected security interest; (e) Investments accepted in connection with transfers permitted by Section 7.1(b); (f) [reserved]; (g) Investments (i) consisting of travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business not to exceed $2,000,000 in the aggregate in any fiscal year and (ii) loans to employees, officers or directors in an amount not to exceed $2,000,000 in the aggregate at any time outstanding relating to the purchase of Equity Interests of Borrower or any of its Restricted Subsidiaries pursuant to stock option and other compensation plans and 34 |
benefit programs or agreements approved by such Person’s board of directors (or equivalent governing body); (h) Investments (including debt obligations, Equity Interests or other securities) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business; (i) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; provided that this paragraph (i) shall not apply to Investments of Borrower in any Subsidiary; (j) Lender-Provided Xxxxxx; (k) Permitted Acquisitions; (l) any Investment in (i) any Loan Party by any other Loan Party, (ii) any Restricted Subsidiary (which is not a Loan Party) by any other Restricted Subsidiary (which is not a Loan Party), (iii) any Subsidiary (which is not a Loan Party) by any Loan Party; provided that the aggregate amount of such Investments under this clause (iii) does not exceed the greater of (i) $10,000,000 and (ii) 1.5% of Consolidated Total Assets as of the last day of the most recently ended test period at any one time outstanding, and (iv) any Loan Party by any Restricted Subsidiary (which is not a Loan Party); (m) guarantees permitted by Section 7.3; and (n) other Investments not otherwise permitted by Section 7.4, so long as (i) no Event of Default shall exist or would result immediately before and after giving effect to such Investment, (ii) as of the most recently ended fiscal quarter for which financial statements shall have been delivered, calculated on a pro forma basis as if such Investment had been made on the first day of the relevant testing period, neither of the Total Net Leverage Ratio and Secured Net Leverage Ratio exceed an amount that is 0.25:1.00 below the Total Net Leverage Ratio and Secured Net Leverage Ratio required at such time under Section 6.8, and (iii) Liquidity is not less than $75,000,000 before and after giving effect to any such Investments. “Permitted Receivables Indebtedness” means Indebtedness of Borrower and its Subsidiaries arising pursuant to (a) that certain Receivables Purchase Agreement, dated as of December 23, 2020 (as amended, restated, amended and restated, modified or supplemented and in effect from time to time), by and between Veeco Process, as the seller, and HSBC, as the purchaser, and (b) any other receivables facility or financing (including, without limitation, any factoring financing transaction) that are non-recourse to Borrower and any Restricted Subsidiary and otherwise contain customary market terms (as reasonably determined by Borrower in good faith); provided that the aggregate outstanding amount of such Indebtedness shall not exceed the greater of (i) $15,000,000 and (ii) 2.5% of Consolidated Total Assets as of the last day of the most recently ended test period at any time. “Person” shall mean any individual, sole proprietorship, partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, limited liability company, limited liability partnership, institution, public benefit corporation, joint venture, entity or Governmental Body (whether Federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof). 35 |
“Plan” shall mean any employee benefit plan within the meaning of Section 3(3) of ERISA, maintained for employees of any Loan Party or any such Plan to which any Loan Party is required to contribute on behalf of any of its employees. “Pledged Collateral” shall mean the collective reference to the following: all of such Loan Party’s right, title and interest in, to and under (a)(i) the shares of capital stock and other Equity Interests owned by such Loan Party, including those listed opposite the name of such Loan Party in the Information Certificate; (ii) any other Equity Interests obtained in the future by such Loan Party and (iii) the certificates and other instruments (if any) representing all such Equity Interests (collectively, the “Pledged Equity Interests”); provided that the Pledged Equity Interests shall not include any Excluded Property, (b)(i) the debt securities owned by such Loan Party, including those listed opposite the name of such Loan Party in the Information Certificate, (ii) any debt securities in the future issued to or otherwise acquired by such Loan Party and (iii) the promissory notes and any other instruments evidencing all such debt securities (collectively, the “Pledged Debt Securities”); provided that the Pledged Debt Securities shall not include any Excluded Property; (c) all other property that may be delivered to and held by the Agent pursuant to the terms of Section 4.2; (d) all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the Pledged Equity Interests and Pledged Debt Securities; (e) all rights and privileges of such Loan Party with respect to the securities, instruments and other property referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of any of the foregoing; provided that, in each case, the Pledged Collateral shall not include any Excluded Property. “Pledged Debt Securities” has the meaning specified in the definition of “Pledged Collateral”. “Pledged Equity Interests” has the meaning specified in the definition of “Pledged Collateral”. “Provision for Taxes” shall mean an amount equal to all Taxes imposed on or measured by net income, whether federal, state, provincial, county or local, and whether foreign or domestic, that are paid or payable by any Person in respect of any period in accordance with GAAP. “PTE” means a prohibited transaction class exemption issued by the Department of Labor, as any such exemption may be amended from time to time. “Purchasing Lender” shall have the meaning set forth in Section 15.3(c). “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 therefor in Section 15.20 of this Agreement. “Qualified ECP Loan Party” means, in respect of any Swap Obligation, (a) each of Borrower and any Guarantor that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred, or (b) such other Person as is qualified to give a “letter of credit or keepwell, support, or other agreement” for purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. “RCRA” shall mean the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., as same may be amended from time to time. “Real Property” shall mean all of each Loan Party’s right, title and interest in and to its owned and leased premises. 36 |
“Receivables” shall mean and include as to each Loan Party, all of such Loan Party’s accounts (including, without limitation, all health-care insurance receivables), contract rights, instruments (including promissory notes and other instruments evidencing Indebtedness owed to such Loan Party by their Affiliates), documents, chattel paper (whether tangible or electronic), general intangibles relating to accounts, drafts and acceptances, and all other forms of obligations owing to such Loan Party arising out of or in connection with the sale, lease or other disposition of Inventory or the rendition of services, all guarantees and other security therefor, whether secured or unsecured, now existing or hereafter created, and whether or not specifically sold or assigned to Agent hereunder. “Recipient” means (a) Agent, (b) any Lender and (c) the Issuer, as applicable. “Refinanced Existing Convertible Notes Indebtedness” shall have the meaning set forth in Section 7.15. “Register” has the meaning specified in Section 15.3(d). “Reinvestment” shall mean the acquisition of assets or other investment in the relevant Person’s business with an amount equal to the Net Cash Proceeds of any sale or other disposition of any other assets (other than Inventory in the ordinary course of business) or Casualty Event. “Reinvest” and “Reinvested” shall have correlative meanings. “Reinvestment Deferred Amount” shall mean with respect to any Reinvestment Event, an amount equal to the aggregate Net Cash Proceeds received by any Loan Party in connection therewith that are not applied to prepay the Advances or other amounts pursuant to Section 2.14(a) as a result of the delivery of a Reinvestment Notice. “Reinvestment Event” shall mean any sale or other disposition of assets (other than Inventory in the ordinary course of business) in respect of which Xxxxxxxx has delivered a Reinvestment Notice to Agent. “Reinvestment Notice” shall mean a written notice executed by an Authorized Officer of Xxxxxxxx stating that no Default or Event of Default has occurred and is continuing and that the Loan Parties (directly or indirectly through a Subsidiary) reasonably intend and expect to Reinvest all or a specified portion of an amount equal to the Net Cash Proceeds of a sale or other disposition of assets (other than Inventory in the ordinary course of business), in each case, within 365 days of such sale or disposition (or, if within such 365-day period, the Loan Parties enter into a binding commitment to so Reinvest, and does so Reinvest, such Net Cash Proceeds, within 180 days following such 365-day period during which Borrower so committed to such plan of Reinvestment). “Reinvestment Prepayment Amount” shall mean, with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount actually Reinvested prior to the relevant Reinvestment Prepayment Date. “Reinvestment Prepayment Date” shall mean with respect to any Reinvestment Event, the earlier of (a) 365 days after such sale or disposition (or, if within such 365-day period, the Loan Parties enter into a binding commitment to so Reinvest, and does so Reinvest, such Net Cash Proceeds, within 180 days following such 365-day period during which Borrower so committed to such plan of Reinvestment) and (b) the date on which Borrower shall have determined not to, or shall have otherwise ceased to, make Reinvestments with all or any portion of the relevant Reinvestment Deferred Amount. 37 |
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates. “Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto. “Report” shall have the meaning set forth in Section 9.7. “Reportable Event” shall mean a reportable event described in Section 4043(c) of ERISA or the regulations promulgated thereunder, other than events for which the thirty (30) day notice period has been waived. “Required Lenders” shall mean Lenders holding a majority of the Commitment Percentages; provided however, if there are fewer than three (3) Lenders, Required Lenders shall mean all Lenders. “Resignation Effective Date” shall mean, collectively, the promissory notes referred to in Section 14.3(c). “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Restricted Payment” shall mean (i) to declare, pay or make any dividend or distribution on any shares of the common stock, preferred stock or other Equity Interests of any Loan Party (other than dividends or distributions payable in its stock or other Equity Interests or split-ups or reclassifications of its stock or other equity interests) or for any Loan Party to apply any of its funds, property or assets to the purchase, redemption or other retirement of any common or preferred stock or other Equity Interests, or of any options to purchase or acquire any such shares of common or preferred stock or other Equity Interests of any Loan Party, (ii) to repay or prepay any Junior Lien Indebtedness or Subordinated Indebtedness, or repurchase, redeem or retire Junior Lien Indebtedness or Subordinated Indebtedness of any Loan Party, or (iii) any payment by any Loan Party of any management, consulting or similar fees to or any Affiliate, whether pursuant to a management agreement or otherwise.; provided that payments (whether in cash or in kind) or deliveries in respect of the First Amendment Convertible Notes (including, without limitation, interest payments and payments and/or deliveries due upon conversion, settlement or redemption thereof) shall not constitute Restricted Payments. “Restricted Subsidiary” shall mean each Subsidiary of Borrower other than any Unrestricted Subsidiaries. “Revolving Advances” shall mean Advances made other than Swingline Loans and Letters of Credit, and including, for the avoidance of doubt, any Revolving Advances made pursuant to Section 2.4. “Revolving Commitment” shall mean, as to any Lender, its obligation to make Revolving Advances in an aggregate amount not to exceed its Revolving Commitment Percentage. “Revolving Commitment Percentage” of any Lender shall mean the percentage set forth below such Lender’s under the applicable heading on Schedule 1.1 to this Agreement under the heading “Revolving Commitment Percentage” as same may be adjusted upon any assignment by a Lender pursuant to Section 15.3. 38 |
“Revolving Credit Note” shall mean, collectively, the promissory notes referred to in Section 2.1(a). “Revolving Interest Rate” shall mean an interest rate per annum equal to (a) the sum of the Base Rate plus the Applicable Margin, with respect to Domestic Rate Loans, and (b) the sum of Adjusted Term SOFR plus the Applicable Margin, with respect to SOFR Loans. “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations Security Council, the European Union or any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a jurisdiction subject to Sanctions, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person that is otherwise the subject of any Sanctions. “Sanctions” shall have the meaning set forth in Section 5.23. “SEC” shall mean the U.S. Securities and Exchange Commission or any successor thereto. “Secured Net Leverage Ratio” means, with respect to the last day of any fiscal period, the ratio of (a) Consolidated Funded Debt as of such date, minus (i) up to $85,000,000 of unrestricted domestic cash and Cash Equivalents of the Loan Parties as of such date and (ii) the principal amount of unsecured Indebtedness of Borrower and its Restricted Subsidiaries as of such date to (b) Consolidated EBITDA for the four (4) consecutive fiscal quarters ending on or immediately prior to such fiscal period. “Settlement Date” shall mean the Closing Date and thereafter Tuesday of each week, unless such day is not a Business Day in which case it shall be the next succeeding Business Day, and every other Business Day designated by Agent as a “Settlement Date” by notice from Agent to each Lender. Agent shall be obligated to designate a Settlement Date in the event that Borrower requests Revolving Advances in excess of the Maximum Swingline Loan Amount. “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “SOFR Borrowing” means, as to any borrowing of Revolving Advances, the SOFR Loans comprising such borrowing of Revolving Advances. “SOFR Loan” means a Revolving Advance that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”. “Special Purpose Subsidiary” shall mean (i) a direct or indirect Subsidiary of Borrower established in connection with the incurrence of Permitted Receivables Indebtedness (but excluding, for the avoidance of doubt, Veeco Process) and which is organized in a manner (as determined by Borrower in good faith) intended to reduce the likelihood that it would be substantively consolidated with any of Borrower or any of the Subsidiaries (other than Special Purpose Subsidiaries) in the event Borrower or any such Subsidiary becomes subject to a proceeding under the Title 11 of the Bankruptcy Code (or other insolvency law) and (ii) any subsidiary of a Special Purpose Subsidiary. 39 |
“Springing Maturity Date” means the date that is the earlier of (x) the date that is 91 days prior to the 2025 Convertible Notes Maturity Date if Borrower is not in pro forma compliance with the financial covenants set forth in Section 6.8 hereof (assuming repayment of the 2025 Convertible Notes has been made on the first day of such period) as of the most recently ended test period for which financial statements have been delivered prior to such date and (y) during the Minimum Liquidity Period, the first date that Borrower does not maintain Minimum Liquidity or Borrower is not in pro forma compliance with the financial covenants set forth in Section 6.8 hereof (assuming repayment of the 2025 Convertible Notes has been made on the first day of such period) as of the most recently ended test period for which financial statements have been delivered. “Standby Letters of Credit” shall mean all Letters of Credit issued in connection with this Agreement as a credit enhancement for certain Indebtedness (other than Indebtedness for borrowed money) of Borrower. “Stock Pledge Agreement” shall mean a Stock Pledge Agreement, dated as of the Closing Date, pursuant to which each Loan Party pledges to Agent as Collateral for the Obligations the issued and outstanding shares of Subsidiary Stock. “Subordinated Indebtedness” means (a) with respect to Borrower, any Indebtedness of Borrower which is by its terms expressly subordinated in right of payment to the Obligations, and (b) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms expressly subordinated in right of payment to its guarantee of the Obligations, in each case to the written satisfaction of Agent and the Required Lenders. “Subsidiary” shall mean, with respect to any Person, a corporation or other entity of whose 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 directors or managers of such corporation or other entity, or other Persons performing similar functions for such entity, are owned, directly or indirectly, by such Person. “Subsidiary Stock” shall mean all of the issued and outstanding Equity Interests of any Subsidiary owned by any Loan Party. “Supported QFC” has the meaning specified therefor in Section 15.20 of this Agreement. “Swap Obligation” means, with respect to any of Borrower or 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. “Swingline Lender” means HSBC, or if HSBC shall resign as Swingline Lender, another Lender selected by Agent or the successor Agent and reasonably acceptable to Required Lenders and Borrower. “Swingline Loan” means each Advance made by Swingline Lender pursuant to Section 2.1(c). “Swingline Note” shall mean the promissory note referred to in Section 2.1(c). “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Body, including any interest, additions to tax or penalties applicable thereto. 40 |
41 0.10% Interest Period Three months Percentage 0.15% “Term” shall mean the period commencing on the Closing Date and ending on the Termination Date. “Term SOFR” means: (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and (b) for any calculation with respect to a Domestic Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. As of the Closing Date, the Floor shall be deemed to be zero for purposes of this Agreement. “Term SOFR Adjustment” means, for any calculation with respect to a SOFR Loan, a percentage per annum as set forth below for the applicable Interest Period therefor: Six months 0.25% One month “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Agent in its reasonable discretion). “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR. |
“Termination Date” means the date that is the earliest of (a) December 16, 2026, (b) the Springing Maturity Date, (c) the acceleration of all Obligations pursuant to the terms of this Agreement, and (dc) the date on which this Agreement shall be terminated in accordance with the provisions hereof or by operation of law. “Termination Event” shall mean (i) a Reportable Event with respect to any Plan or Multiemployer Plan; (ii) the withdrawal of any Loan Party or any member of the Controlled Group from a Pension Benefit Plan or Multiemployer Plan during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA; (iii) the providing of notice of intent to terminate a Pension Benefit Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to terminate a Pension Benefit Plan or Multiemployer Plan; (v) any event or condition (a) which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Benefit Plan or Multiemployer Plan, or (b) that may reasonably be expected to result in termination of a Multiemployer Plan pursuant to Section 4041A of ERISA; or (vi) the partial or complete withdrawal within the meaning of Sections 4203 and 4205 of ERISA, of any Loan Party or any member of the Controlled Group from a Multiemployer Plan. “Total Net Leverage Ratio” means, with respect to the last day of any fiscal period, the ratio of (a) Consolidated Funded Debt as of such date, minus up to $85,000,000 of unrestricted domestic cash, Cash Equivalents of the Loan Parties as of such date, to (b) Consolidated EBITDA for the four (4) consecutive fiscal quarters ending on or immediately prior to such fiscal period. “Transactions” means the transactions contemplated by this Agreement. “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code. “U.S. Special Resolution Regimes” has the meaning specified therefor in Section 15.20 of this Agreement. “UCC” shall have the meaning set forth in Section 1.3. “UK Bribery Act” shall have the meaning set forth in Section 5.23. “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. 42 |
Section 2.1(c)). The proceeds of any such Revolving Advance shall be immediately paid over to Agent for the benefit of Swingline Lender for application to the Swingline Loan. (iii) In the event that an Event of Default shall occur and either (i) such Event of Default is of the type described in Section 10.7 or 10.8 or (ii) no further Revolving Advances are being made under this Agreement, so long as any such Event of Default is continuing, then, each of the Lenders (other than Swingline Lender) shall be deemed to have irrevocably, unconditionally and immediately purchased a participation from Swingline Lender of such Lender’s Commitment Percentage of the Swingline Loan outstanding as of the date of the occurrence of such Event of Default. Each Lender shall effect such purchase by making available an amount equal to its Commitment Percentage of the outstanding Swingline Loan on the date of such purchase in Dollars in immediately available funds to Agent for the benefit of Swingline Lender. In the event any Lender fails to make available to Swingline Lender when due the amount of such Xxxxxx’s participation in the Swingline Loan (as calculated above), Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest at the Federal Funds Rate. Each such purchase by a Lender shall be made without recourse to Swingline Lender, without representation or warranty of any kind, and shall be effected and evidenced pursuant to documents reasonably acceptable to Swingline Lender. The Swingline Loans shall be evidenced by one or more promissory notes substantially in the form of Exhibit D. The obligations of the Lenders under this Section 2.1(c) shall be absolute, irrevocable and unconditional, shall be made under all circumstances and shall not be affected, reduced or impaired for any reason whatsoever. 2.2. Procedure for Borrowing. (a) Borrower may notify by delivery of a Notice of Borrowing to Agent prior to 11:00 a.m. (New York time) on a Business Day of Xxxxxxxx’s request to incur, on that day, or in the alternative, on the immediately succeeding Business Day thereafter (as specified in the Notice of Borrowing), a Revolving Advance hereunder. Any amount required to be paid as interest hereunder, or as fees or other charges under this Agreement or any other agreement with Agent, any Lender and/or the Issuer, or with respect to any other Obligation, which shall become due, if not otherwise paid when due, shall be deemed a request for a Revolving Advance to be maintained as a Domestic Rate Loan as of the date such payment is due, in the amount required to pay in full such interest, fee, charge or Obligation under this Agreement, or any other agreement with Agent, any Lender and/or the Issuer and such request shall be irrevocable. (b) Notwithstanding the provisions of subsection (a) above, in the event Borrower desires to obtain a SOFR Loan, Borrower shall deliver a Notice of Borrowing to Agent by no later than 11:00 a.m. (New York time) on the day which is three (3) U.S. Government Securities Business Days prior to the date such SOFR Loan is to be borrowed, specifying (i) the date of the proposed borrowing (which shall be a Business Day), (ii) the type of borrowing and the amount on the date of such Revolving Advance to be borrowed, which amount shall be in a minimum amount of $5,000,000 and in integral multiples of $500,000 in excess thereof, and (iii) the duration of the first Interest Period therefor. Interest Periods for SOFR Loans consisting of Revolving Advances shall be for one, three or six months. No SOFR Loan shall be made available to Borrower during the continuance of a Default or an Event of Default. After giving effect to each such borrowing, there shall not be outstanding more than six (6) SOFR Loans consisting of Revolving Advances, in the aggregate at any time. Agent shall provide Borrower with a quote of the actual interest rate available for the SOFR Loan requested by Xxxxxxxx, which quote shall be given on the day after such SOFR Loan is requested and such quote shall be effective from the day provided by Agent until two (2) Business Days thereafter. 46 |
(c) Subject to the definition of “Interest Period”, each Interest Period of a SOFR Loan shall commence on the date such SOFR Loan is made and shall end on such date as Borrower may elect as set forth in subsection (b)(iii) above. (d) Borrower shall elect the initial Interest Period applicable to a SOFR Loan by its Notice of Borrowing given to Agent pursuant to Section 2.2(b) or by its Notice of Conversion given to Agent pursuant to Section 2.2(e) as the case may be. Borrower shall elect the duration of each succeeding Interest Period by giving irrevocable written notice to Agent of such duration not less than three (3) U.S. Government Securities Business Days prior to the last day of the then current Interest Period applicable to such SOFR Loan. If Agent does not receive timely notice of the Interest Period elected by Xxxxxxxx, Borrower shall be deemed to have elected to convert to a Domestic Rate Loan subject to Section 2.2(e). (e) Provided that no Event of Default shall have occurred and be continuing, Borrower may, on the last Business Day of the then current Interest Period applicable to any outstanding SOFR Loan, or on any Business Day with respect to Domestic Rate Loans, convert any such loan into a loan of another type in the same aggregate principal amount; provided that any conversion of a SOFR Loan shall be made only on the last Business Day of the then current Interest Period applicable to such SOFR Loan. If Borrower desires to convert a loan, Borrower shall give Agent a Notice of Conversion by no later than 11:00 a.m. (New York time) (i) on the day which is three (3) U.S. Government Securities Business Days prior to the date on which such conversion is to occur with respect to a conversion from a Domestic Rate Loan to a SOFR Loan, or (ii) on the day which is one (1) U.S. Government Securities Business Day prior to the date on which such conversion is to occur with respect to a conversion from a SOFR Loan to a Domestic Rate Loan, specifying, in each case, the date of such conversion, the loans to be converted and if the conversion is from a Domestic Rate Loan to any other type of loan, the duration of the first Interest Period therefor. After giving effect to each request for a SOFR Loan, there shall not be outstanding more than six (6) SOFR Loans consisting of Revolving Advances, in the aggregate. (f) At its option and upon written notice given prior to 11:00 a.m. (New York time) three (3) U.S. Government Securities Business Days prior to the date of such prepayment, Borrower may prepay the SOFR Loans in whole at any time or in part from time to time, without premium or penalty (except amounts which may be owed pursuant to Section 15.5(b)), but with accrued interest on the principal being prepaid to the date of such repayment. Borrower shall specify the date of prepayment of Revolving Advances which are SOFR Loans and the amount of such prepayment. In the event that any prepayment of a SOFR Loan is required or permitted on a date other than the last Business Day of the then current Interest Period with respect thereto, Borrower shall pay any amounts which may be owed pursuant to Section 15.5(b). (g) Notwithstanding any other provision hereof, if any Applicable Law, treaty, regulation or directive, or any change therein or in the interpretation or application thereof, shall make it unlawful for any Lender (for purposes of this Section 2.2(g), the term “Lender” shall include any Lender and the office or branch where any Lender or any corporation or bank controlling such Lender makes or maintains any SOFR Loans) to make or maintain its SOFR Loans, the obligation of Lenders to make SOFR Loans hereunder shall forthwith be cancelled and Borrower shall, if any affected SOFR Loans are then outstanding, promptly upon request from Agent, either pay all such affected SOFR Loans or convert such affected SOFR Loans into Domestic Rate Loans. In the event that (i) any payment of a SOFR Loan is required, made or permitted on a date other than the last day of the then current Interest Period applicable thereto (including upon demand by Agent or Lenders ), (ii) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto, or (iii) the failure to convert, continue, borrow or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, then, in any such event, Borrower shall compensate the Lenders for the loss, cost and expense attributable to such 47 |
shall be bound by Agent’s or Issuer’s regulations and good faith interpretations of any Letter of Credit issued or created for Xxxxxxxx’s Account, although this interpretation may be different from its own; and, neither Agent, nor any Lender, nor the Issuer nor any of their correspondents shall be liable for any error, negligence, or mistakes, whether of omission or commission, in following Borrower’s instructions or those contained in any Letter of Credit or of any modifications, amendments or supplements thereto or in issuing or paying any Letter of Credit except for Agent’s, any Xxxxxx’s, the Issuer’s or such correspondents’ willful misconduct or gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable judgment). (b) Xxxxxxxx shall authorize and direct the Issuer of a Letter of Credit to deliver to Agent all related payment/acceptance advices, to deliver to Agent all instruments, documents, and other writings and property received by Issuer pursuant to the Letter of Credit and to accept and rely upon Agent’s instructions and agreements with respect to all matters arising in connection with the Letter of Credit or the application therefor. With respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. (c) In connection with all Letters of Credit issued or caused to be issued by Agent under this Agreement, Borrower hereby appoints Agent, or its designee, as its attorney, with full power and authority: (i) to sign and/or endorse Borrower’s name upon any warehouse or other receipts, letter of credit applications and acceptances; (ii) to sign Xxxxxxxx’s name on bills of lading; and (iii) to complete in Borrower’s name or Agent’s, or in the name of Agent’s designee, any order, sale or transaction, obtain the necessary documents in connection therewith, and collect the proceeds thereof. None of Agent, Issuer nor any of their respective attorneys will be liable for any acts or omissions nor for any error of judgment or mistakes of fact or law, except for Agent’s, Issuer’s or their respective attorney’s willful misconduct or gross negligence (as determined by a court of competent jurisdiction in a final and non-appealable judgment). This power, being coupled with an interest, is irrevocable as long as any Letters of Credit remain outstanding. (d) Each Lender shall to the extent of the amount equal to the product of such Xxxxxx’s Commitment Percentage times the aggregate amount of all unreimbursed reimbursement obligations arising from disbursements made or obligations incurred with respect to the Letters of Credit be deemed to have irrevocably purchased an undivided participation in (i) each such unreimbursed reimbursement obligation, and (ii) each Revolving Advance made as a consequence of the issuance of a Letter of Credit and all disbursements thereunder, in each case in an amount equal to such Lender’s applicable Commitment Percentage times the outstanding amount of the Letters of Credit and disbursements thereunder. In the event that at the time a disbursement is made the unpaid balance of Revolving Advances exceeds or would exceed, with the making of such disbursement, the amount permitted under Section 2.1(a), and such disbursement is not reimbursed by Borrower within one (1) Business Day, Agent shall promptly notify each Lender and upon Agent’s demand each Lender shall pay to Agent such Xxxxxx’s proportionate share of such unreimbursed disbursement together with such Xxxxxx’s proportionate share of Agent’s unreimbursed costs and expenses relating to such unreimbursed disbursement. Upon receipt by Agent of a repayment from Borrower of any amount disbursed by Agent for which Agent had already been reimbursed by Xxxxxxx, Agent shall deliver to each Lender that Xxxxxx’s pro rata share of such repayment. Each Lender’s participation commitment shall continue until the last to occur of any of the following events: (A) Issuer ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (B) no Letters of Credit issued hereunder remain outstanding and 53 |
and, for purposes of the definition of “Required Lenders”, a Defaulting Lender shall be deemed not to be a Lender and not to have either Advances outstanding or a Commitment Percentage. (d) Other than as expressly set forth in this Section 2.16, the rights and obligations of a Defaulting Lender (including the obligation to indemnify Agent) and the other parties hereto shall remain unchanged. Nothing in this Section 2.16 shall be deemed to release any Defaulting Lender from its obligations under this Agreement and the other Loan Documents, shall alter such obligations, shall operate as a waiver of any default by such Defaulting Lender hereunder, or shall prejudice any rights which Borrower, Agent or any Lender may have against any Defaulting Lender as a result of any default by such Defaulting Lender hereunder. (e) If Borrower, Agent, the Swingline Lender and the Issuer agree in writing that a Lender is no longer a Defaulting Lender, 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 Advances of the other Lenders or take such other actions as Agent may determine to be necessary to cause the Advances and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable facility, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustment will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender. (f) So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto. 2.17. Bank Product Obligations and Lender-Provided Xxxxxx. Each Lender or Affiliate thereof providing Bank Product Obligations for, or having Lender-Provided Xxxxxx with, any Loan Party shall deliver to the Agent, promptly after entering into such Bank Product Obligations or Lender-Provided Xxxxxx, written notice setting forth the aggregate amount of all Bank Product Obligations and Lender-Provided Xxxxxx of such Loan Party to such Lender or Affiliate (whether matured or unmatured, absolute or contingent). In addition, each such Lender or Affiliate thereof shall deliver to the Agent, from time to time after a significant change therein or upon a request therefor, a summary of the amounts due or to become due in respect of such Bank Product Obligations and Lender-Provided Xxxxxx. The most recent information provided to the Agent shall be used in determining the amounts to be applied in respect of such Bank Product Obligations and/or Lender-Provided Xxxxxx pursuant to Section 11.2 and which tier of the waterfall contained in Section 11.2 such Bank Product Obligations and/or Lender-Provided Xxxxxx will be placed. For the avoidance of doubt, so long as HSBC or its Affiliate is the Agent, neither HSBC nor any of its Affiliates providing Bank Product Obligations for, or having Lender-Provided Xxxxxx with, any Loan Party or any Subsidiary or Affiliate of a Loan Party shall be required to provide any notice described in this Section 2.17 in respect of such Bank Product Obligations or Lender-Provided Xxxxxx 57 |
Recipient or required to be withheld or deducted from a payment to such Recipient and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Body. Promptly upon having knowledge that any such Indemnified Taxes have been levied, imposed or assessed, and promptly upon notice by the Agent or any Lender, the Loan Parties shall pay such Indemnified Taxes directly to the relevant Governmental Body; provided that neither Agent nor any Lender shall be under any obligation to provide any such notice to the Loan Parties. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. The Loan Parties hereby indemnify Agent, and shall make payment in respect thereof within ten days after demand therefor, for any amount which a Lender for any reason fails to pay to Agent as required by the Agreement. (e) Each Lender shall severally indemnify Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Xxxxxx’s failure to comply with the provisions of Section 15.3 relating to the maintenance of the Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Agent in connection with this Agreement or any other Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Body. A certificate as to the amount of such payment or liability delivered to any Lender by Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document or otherwise payable by Agent to the Lender from any other source against any amount due to Agent under this paragraph (e). (f) As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Body pursuant to this Section 3.10, such Loan Party shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent. (g) (i)(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under this Agreement or any other Loan Document shall deliver to Borrower and Agent, at the time or times reasonably requested by Borrower or Agent, such properly completed and executed documentation reasonably requested by Borrower or Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrower or Agent as will enable Borrower or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.10(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that Borrower is a Borrower that is a U.S. Person, (A) any Lender that is a U.S. Person shall deliver to Borrower and Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from 63 |
time to time thereafter upon the reasonable request of Borrower or Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under this Agreement or any other Loan Document, properly completed and duly executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under this Agreement or any other Loan Document, IRS Form W--8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) properly completed and duly executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) properly completed and duly executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or (4) to the extent a Foreign Lender is not the beneficial owner, properly completed and duly executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, or IRS Form W-8BEN-E a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit Borrower or Agent to determine the withholding or deduction required to be made; and 64 |
(D) if a payment made to a Lender under this Agreement or any other Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or 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 Borrower or Agent as may be necessary for Borrower and Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Xxxxxx’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iii) On or before the date the Agent (or any successor Agent) becomes the Agent hereunder, it shall deliver to Borrower two (2) duly executed copies of either (A) IRS Form W-9 (or any successor forms) certifying that it is exempt from U.S. federal backup withholding Tax or (B) a U.S. branch withholding certificate on IRS Form W-8IMY (or any successor forms) evidencing its agreement with Borrower to be treated as a U.S. Person (with respect to amounts received on account of any Lender party to this Agreement) and IRS Form W-8ECI (or any successor forms) (with respect to amounts received on its own account), with the effect that, in either case, Borrower will be entitled to make payments hereunder to the Agent without withholding or deduction on account of U.S. federal withholding Tax. The Agent agrees that if any form or certification it previously delivered becomes expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Agent in writing of its legal inability to do so. (h) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.10 (including by the payment of additional amounts pursuant to this Section 3.10), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Body with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Body) in the event that such indemnified party is required to repay such refund to such Governmental Body. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (i) Notwithstanding anything to the contrary in this Section 3.10, Agent shall be entitled to withhold United States federal income taxes at the full 30% withholding rate if in its reasonable judgment it is required to do so under the due diligence requirements imposed upon a withholding agent under Treasury Regulations Section 1.1441-7(b). Further, Agent is indemnified under 65 |
Collateral held for the benefit of the Lenders, except (i) upon the written direction of the Required Lenders (or of all Lenders if required under Section 15.2(b)), (ii) upon payment in full in cash of the Obligations (other than (A) contingent indemnification obligations as to which no claim has been asserted and (B) obligations and liabilities under Lender-Provided Xxxxxx and Bank Product Obligations), the termination of all Commitments under this Agreement and the cash collateralization of all Letters of Credit in accordance with this Agreement (or as otherwise acceptable to the Issuer in its sole discretion), (iii) for Collateral consisting of a debt instrument if the indebtedness evidenced thereby has been paid in full, (iv) where such release is expressly permitted under the Loan Documents to which it is a party or (v) with respect to any Receivable that is sold or pledged in connection with any Permitted Receivables Indebtedness. (c) Subject to the terms of this Agreement, Agent agrees to administer and enforce this Agreement and the other Loan Documents to which it is a party and to foreclose upon, collect and dispose of the Collateral and to apply the proceeds therefrom, for the benefit of Agent, the Issuer and each Lender, as provided in this Agreement, and otherwise to perform its duties and obligations as the collateral agent hereunder in accordance with the terms hereof; provided, however, that Agent shall have no duties or responsibilities except those expressly set forth in the Loan Documents to which it is a party as Collateral Agent, and no implied covenants or obligations shall be read into any such Loan Documents against Agent. Agent will use its commercially reasonable efforts to pursue diligently the enforcement of this Agreement and the other Loan Documents, which Agent is so authorized or directed to initiate pursuant to this Agreement. (d) Notwithstanding anything contained herein to the contrary, Agent shall not be required to exercise any discretion or take any action but shall only be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders, in each case, as specified therein, and such instructions shall be binding upon Agent, the Issuer and each Lender; provided, however, that the written instructions of Agent, the Issuer and each Lender shall be required where expressly provided for herein; and provided, further, that Agent shall not be required to take any action which is contrary to any provision herein or Applicable Law. (e) Agent may at any time request instructions from the Required Lenders as to a course of action to be taken by it hereunder and any of the other Loan Documents or in connection herewith and therewith or any other matters relating hereto and thereto. (f) Unless otherwise consented to in writing by Agent (acting at the direction of the Required Lenders), no Lender or Issuer, individually or together with any other Lenders or the Issuer, shall have the right, nor shall it, exercise or enforce any of the rights, powers or remedies which Agent is authorized to exercise or enforce under this Agreement or any of the other Loan Documents. (g) Notwithstanding any other provision herein, in no event shall Agent be required to foreclose on, or take possession of, the Collateral, if, in the judgment of Agent, such action would be in violation of any Applicable Law, rule or regulation pertaining thereto, or if Agent reasonably believes that such action would result in the incurrence of liability by Agent for which it is not fully indemnified by the Issuer and each Lender. (h) Neither Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for its or their own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment). 72 |
necessary or appropriate for the operation of the commercial business of any Loan Party or of its tenants, in each case except as set forth on Schedule 5.7. 5.8. Solvency; No Litigation, Violation, Indebtedness or Default. (a) After giving effect to the Transactions, Borrower and its Subsidiaries, on a consolidated basis, will be solvent, able to pay its debts as they mature, have capital sufficient to carry on its business and all businesses in which it is about to engage, and (i) as of the Closing Date, the fair present saleable value of each Loan Party’s assets, is in excess of the amount of its liabilities and (ii) immediately subsequent to the Closing Date, the fair saleable value of each Loan Party’s assets (calculated on a going concern basis) will be in excess of the amount of its liabilities. For purposes of this Section 5.8(a), the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5). (b) Except as disclosed in Schedule 5.8(b), no Loan Party has any pending or threatened litigation, arbitration, actions or proceedings which would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. (c) No Loan Party is in violation of any applicable statute, regulation or ordinance in any material respect, nor is any Loan Party in violation of any order of any court, Governmental Body or arbitration board or tribunal. (d) No Loan Party nor any member of the Controlled Group maintains or contributes to any Pension Benefit Plan or Multiemployer Plan other than those listed on Schedule 5.8(d). Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) no Pension Benefit Plan has incurred any “accumulated funding deficiency,” as defined in Section 302(a)(2) of ERISA and Section 412(a) of the Code, whether or not waived, and each of the Loan Parties and each member of the Controlled Group have met all applicable minimum funding requirements under Section 302 of ERISA in respect of each Pension Benefit Plan, (ii) each Plan which is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter, or a favorable opinion letter as to its qualification under Section 401(a) of the Code and no event or circumstance has occurred which would reasonably be expected to result in the revocation of such qualified status of the form of the Plan document under the Code, (iii) no Loan Party nor any member of the Controlled Group has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due which are unpaid, (iv) no Pension Benefit Plan has been terminated within the last five years by the plan administrator thereof nor by the PBGC, and no Loan Party knows of any facts or circumstances which would cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Benefit Plan, (v) at this time, the current value of the assets of each Pension Benefit Plan or funded Plan exceeds the present value of the accrued benefits and other liabilities of such Pension Benefit Plan or Plan and no Loan Party nor any member of the Controlled Group knows of any facts or circumstances which would materially change the value of such assets and accrued benefits and other liabilities, (vi) no Loan Party has breached any of the responsibilities, obligations or duties imposed on it by ERISA with respect to any Plan, (vii) no Loan Party nor any member a Controlled Group has incurred any material liability for any excise tax arising under Section 4972 or 4980B of the Code, and, no Loan Party knows of any facts or circumstances that would give rise to any such material liability, (viii) no Loan Party, and to the knowledge of any Loan Party, no fiduciary of, or trustee to, any Plan, has engaged in a “prohibited transaction” described in Section 406 of ERISA or Section 4975 of the Code nor taken any action which would constitute or result in a Termination Event with respect to any such Plan which is subject to ERISA, (ix) each Loan Party 76 |
Documents), and such failure shall continue unremedied for thirty (30) days after the earlier of (x) the date on which such failure shall first become known to Borrower or (y) the date on which written notice thereof is given to Borrower by Agent; 10.6. Any judgment or judgments are rendered or judgment liens filed against any Loan Party for an aggregate amount in excess of $10,000,000 (except to the extent fully covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has not denied coverage) which within thirty (30) days of such rendering or filing is not either satisfied, stayed or discharged of record; 10.7. Any Loan Party or any Restricted Subsidiary shall (i) apply for, consent to or suffer the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or similar fiduciary of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of creditors, (iii) commence a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a petition seeking to take advantage of any other law providing for the relief of debtors, (vi) acquiesce to, or fail to have dismissed, within sixty (60) days, any petition filed against it in any involuntary case under such bankruptcy laws, or (vii) take any action for the purpose of effecting any of the foregoing; 10.8. Any Loan Party or any Subsidiary of a Loan Party shall admit in writing its inability, or be generally unable, to pay its debts as they become due or cease operations of its present business; 10.9. The validity or enforceability of any Loan Document shall at any time for any reason (other than solely as the result of an action or failure to act on the part of Agent) be declared to be null and void, or a proceeding shall be commenced by a Loan Party or its Subsidiaries, or by any Governmental Body having jurisdiction over a Loan Party or its Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or a Loan Party or its Subsidiaries shall deny that such Loan Party or its Subsidiaries has any liability or obligation purported to be created under any Loan Document; 10.10. (a) Any Loan Party or Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness when and as the same shall become due and payable (after giving effect to any applicable grace period), or (b) any breach or default with respect to any Material Indebtedness occurs by any Loan Party or Restricted Subsidiary, in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that Material Indebtedness (or a trustee on behalf of such holder or holders) to cause, that Material Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity; 10.11. Any material provision of this Agreement shall, for any reason, cease to be valid and binding on any Loan Party, or any Loan Party shall so claim in writing to Agent; 10.12. Termination or breach of any Guaranty or similar agreement executed and delivered to Agent in connection with the Obligations of Borrower, or if any Guarantor of the Obligations attempts to terminate, challenges the validity of, or its liability under, any such Guaranty or similar agreement; 10.13. Any Change of Control shall occur; 10.14. The Guaranty or any other Loan Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid and perfected and, (except to the extent of Permitted Encumbrances which are non-consensual Permitted Encumbrances, permitted purchase money Liens or the interests of lessors under Capital Leases) first priority Lien on the Collateral covered thereby, except (a) as a result 96 |
Xxxxxx; and nothing in this Agreement, expressed or implied, is intended to or shall be so construed as to impose upon Agent any obligations in respect of this Agreement except as expressly set forth herein. Use of the term “agent” in the Agreement or in any other Loan Documents (or any other similar term) with reference to Agent does not connote (and is not intended to connote), any fiduciary or other implied (or express) obligation arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between the contracting parties. Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of Agent (including but not limited to any act or provision of any present or future law or regulation or Governmental Body, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility). 14.3. Lack of Reliance on Agent and Resignation. (a) Independently and without reliance upon Agent, the Issuer or any other Lender, each Lender has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of each Loan Party in connection with the making and the continuance of the Advances hereunder and the taking or not taking of any action in connection herewith, and (ii) its own appraisal of the creditworthiness of each Loan Party. Except as set forth in Section 14.9, Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before making of the Advances or at any time or times thereafter. Agent shall not be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any agreement, document, certificate or a statement delivered in connection with or for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Agreement or any other Loan Document, or of the financial condition of any Loan Party, or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, the Notes, the Loan Documents or the financial condition of any Loan Party, or the existence of any Event of Default or any Default. (b) Any entity into which Agent in its individual capacity may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidations which Agent in its individual capacity may be party, or any corporation to which substantially all of the corporate trust or agency business of Agent in its individual capacity may be transferred, shall be Agent under this Agreement without further action. (c) Agent may at any time resign on thirty (30) days’ written notice to each of Xxxxxxx, the Issuer and Xxxxxxxx (the “Resignation Effective Date”) and upon such resignation, the Required Xxxxxxx will promptly designate a successor Agent reasonably satisfactory to Borrower. If no such successor Agent is appointed at the end of such thirty (30) day period, Agent may (but shall not be obligated to) designate one of the Lenders as a successor Agent, subject to the acceptance of such Xxxxxx; provided that, if no Lender accepts appointment as a successor Agent, then Agent shall be entitled to apply to a court of competent jurisdiction for the appointment of a successor Agent or for other appropriate relief. The costs and expenses (including its’ attorneys’ fees and expenses) incurred by Agent in connection with such proceeding shall be paid by the Lenders. (d) With effect from the Resignation Effective Date, (i) the retiring Agent shall be discharged from its duties and obligations under this Agreement and other Loan Documents and (ii) 102 |
except for any indemnity payments owed to the retiring or removed Agent, all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each Lender and the Issuer directly, until such time, if any, a successor Agent has been appointed as provided for above. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Agent (other than any rights to indemnity payments owed to the retiring Agent). Until a successor Agent is appointed, the retiring Agent shall continue to hold the Liens on the Collateral on behalf of the Lenders, Issuer and Swingline Lender, but otherwise shall be discharged from all of its other duties and obligations under this Agreement and other Loan Documents as of the Resignation Effective Date. Notwithstanding the Resignation Effective Date, all rights of the retiring Agent (and any sub-agent) to indemnification by Xxxxxxxx and Lenders shall continue in effect for the benefit of such retiring Agent, its sub-agents and their Indemnitees in respect of any action taken or omitted to be taken by any of them while the retiring Agent was acting as Agent. After Agent’s resignation as Agent, the provisions of this Article XIV shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. 14.4. Certain Rights of Agent. If Agent shall request instructions from Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, Agent shall be entitled to refrain from such act or taking such action unless and until Agent shall have received written instructions from the Required Lenders; and Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, Xxxxxxx shall not have any right of action whatsoever against Agent as a result of its acting or refraining from acting hereunder in accordance with the instructions of the Required Lenders or all Lenders as required by Section 15.2(b). Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Agreement that Agent is required to exercise and only so long as so directed in writing to take such discretionary action by the Required Lenders provided, however, that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or Applicable Law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay or that may effect a forfeiture, modification or termination of a property interest in violation of any applicable bankruptcy/insolvency laws and Agent shall in all cases be fully justified in failing or refusing to act under the Agreement or any other Loan Document unless it first receives further assurances of its indemnification from the Lenders that Agent reasonably believes it may require, including prepayment of any related expenses and any other protection it requires against any and all costs, expenses and liabilities it may incur in taking or continuing to take any such discretionary action at the direction of the Required Lenders. 14.5. Reliance. Agent shall be entitled to conclusively rely, and shall be fully protected in and shall not incur any liability for relying, upon any note, writing, resolution, notice, request, consent, statement, certificate, instrument, teletype, cablegram, order, document or other writing (including any electronic or telecopier message, internet or intranet website posting or other distribution) in good faith believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or entity, and, with respect to all legal matters pertaining to this Agreement and the other Loan Documents and its duties hereunder, upon advice of counsel selected by it. Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition to the making of any 103 |
Advance, Agent may presume that such condition is satisfactory to such Lender or Issuer unless Agent receives notice to the contrary from such Lender or Issuer prior to the making of such Advance. Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents or attorneys-in-fact appointed by Agent. Agent and any such sub-agent or attorney-in-fact may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the Agreement shall apply to any such sub-agent or attorney-in-fact. Agent shall not be responsible for the negligence or misconduct of any sub-agent or attorney-in-fact except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that Agent acted with gross negligence or willful misconduct in the selection of such sub-agent or attorney-in-fact. Agent shall be entitled to take any action or refuse to take any action which Agent regards as necessary for Agent to comply with any Applicable Law, regulation or court order. Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 14.6. Notice of Default. Except for actual knowledge of non-payment of the Obligations, Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder or under the Loan Documents, except with respect to defaults in the payment of principal, interest and fees required to be paid to Agent for the account of the Lenders, unless Agent has received written notice from a Lender or any Loan Party referring to this Agreement or the other Loan Documents, describing such Default or Event of Default and stating that such notice is a “notice of default” or “notice of event of default”. In the event that Agent receives such a notice, Agent shall give prompt notice thereof to Lenders. Agent may take such action with respect to such Default or Event of Default (including, without limitation, the institution of the Default Rate pursuant to Section 3.1 hereof) as shall be reasonably directed by the Required Lenders in accordance with the terms of the Loan Documents; provided that, unless and until Agent shall have received such directions, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default (including, without limitation, the institution of the Default Rate pursuant to Section 3.1 hereof) as it shall deem advisable in the best interests of Lenders. 14.7. Indemnification. To the extent Agent is not reimbursed and indemnified by the Loan Parties for any amount required under Section 15.5(a) to be paid by the Loan Parties to Agent, each Lender will severally reimburse and indemnify Agent in proportion to its respective portion of the Advances (or, if no Advances are outstanding, according to its Commitment Percentage), for such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that Lenders shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the indemnified party’s bad faith, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment); and provided further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Agent in its capacity as such. 104 |
14.8. Agent in its Individual Capacity. With respect to the obligation of Agent to lend under this Agreement, the Advances made by it shall have the same rights and powers hereunder as any other Lender and as if it were not performing the duties as Agent specified herein; and the term “Lender” or any similar term shall, unless the context clearly otherwise indicates, include Agent in its individual capacity as a Lender. Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with any Loan Party as if it were not performing the duties specified herein, and may accept fees and other consideration from the Loan Parties for services in connection with this Agreement or otherwise without having to account for the same to Lenders. Each Loan Party agrees to pay to Agent, for each of their own account, the fees payable in the amounts and at the times set forth in the Fee Letter. 14.9. Delivery of Documents. To the extent Agent receives documents and information from the Loan Parties pursuant to Sections 9.7, 9.8, and 9.12, Agent will promptly furnish such documents and information to Lenders. 14.10. Loan Parties’ Undertaking to Agent. Without prejudice to its obligations to Lenders under the other provisions of this Agreement, each Loan Party hereby undertakes with Agent to pay to Agent from time to time on demand all amounts from time to time due and payable by it for the account of Agent or Lenders or any of them pursuant to this Agreement to the extent not already paid. Any payment made pursuant to any such demand shall pro tanto satisfy such Loan Party’s obligations to make payments for the account of Lenders or the relevant one or more of them pursuant to this Agreement. 14.11. Bankruptcy Proceedings. In case of any bankruptcy or other insolvency proceeding involving Borrower (a “Bankruptcy Proceeding”), Agent shall be entitled, but not obligated to, to intervene in such Bankruptcy Proceeding to (a) file and prove a claim for the whole amount of principal, interest and unpaid fees in respect of the Revolving Advances, issued Letters of Credit and all other Obligations that are owing and unpaid under the terms of this Agreement and other Loan Documents and to file such documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuer and Agent (including any claim for reasonable compensation, expenses, disbursements and advances of any of the foregoing entities and their respective agents, counsel and other advisors) allowed in such Bankruptcy Proceedings; and (b) to collect and receive any monies or other property payable or deliverable on account of any such claims and to distribute the same to the Lenders and the Issuer under the terms of this Agreement. Further, any custodian, receiver, assignee, trustee, liquidator or similar official in any such Bankruptcy Proceeding is (i) authorized to make payments or distributions in a Bankruptcy Proceeding directly to Agent on behalf of all of the Lenders or the Issuer to whom any amounts are owed under this Agreement and other Loan Documents, unless Agent expressly consents in writing to the making of such payments or distributions directly to such Lenders and the Issuer; and (ii) required to pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any other amounts due to Agent under this Agreement and other Loan Documents. 14.12. No Liability for Clean-Up of Hazardous Materials. In the event that Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any obligation for the benefit of 105 |
another, which in Agent’s sole discretion may cause Agent to be considered an “owner or operator” under the provisions of CERCLA, or otherwise cause Agent to incur liability under CERCLA or any other federal, state or local law, Agent reserves the right, instead of taking such action, to either resign as Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Except for such claims or actions arising directly from the gross negligence, or willful misconduct of Agent, Agent shall not be liable to any Person or entity for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of Agent’s actions and conduct as authorized, empowered and directed hereunder, including in or relating to the discharge, release or threatened release of Hazardous Substances into the environment. If at any time after any foreclosure on the Collateral (or a transfer in lieu of foreclosure) upon the exercise of remedies in accordance with the terms of this Agreement it is necessary or advisable to take possession, own, operate or manage any portion of the Collateral by any Person or entity other than Borrower, Agent shall appoint an appropriately qualified Person to possess, own, operate or manage such Collateral. 14.13. Certain ERISA Matters. (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Agent and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between Agent, in its sole discretion, and such Lender. (b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and 106 |
covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Agent and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that Agent is not a fiduciary with respect to the assets of such Lender involved in such Xxxxxx’s entrance into, participation in, administration of and performance of the Advances, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by Agent under this Agreement, any other Loan Document or any documents related hereto or thereto). 14.14. Rates. The interest rate on an Advance denominated in Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 3.8 provides a mechanism for determining an alternative rate of interest. The Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the Benchmark, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. Agent may select information sources or services in its reasonable discretion to ascertain the Benchmark or any other Benchmark including any component thereof, or rates referenced in the definition thereof, 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 calculation of any such rate (or component thereof) provided by any such information source or service. 14.15. Erroneous Payments. (a) If Agent (x) notifies a Lender, Issuer or secured party, or any Person who has received funds on behalf of a Lender, Issuer or secured party (any such Lender, Issuer, secured party or other recipient (and each of their respective successors and permitted assigns), a “Payment Recipient”) that Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from Agent) received by such Payment Recipient from Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuer, secured party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of Agent pending its return or repayment as contemplated below in this Section 14.15 and held in trust for the benefit of Agent, and such Lender, Issuer or secured party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 107 |
promptly, but in no event later than two (2) Business Days thereafter (or such later date as Agent may, in its sole discretion, specify in writing), return to Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. (b) Without limiting immediately preceding clause (a), each Lender, Issuer, secured party or any Person who has received funds on behalf of a Lender, Issuer or secured party (and each of their respective successors and permitted assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by Agent (or any of its Affiliates), or (z) that such Lender, Issuer or secured party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case: (i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and (ii) such Lender, Issuer or secured party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within two (2) Business Days of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying Agent pursuant to this Section 14.15(b). (c) Each Lender, Issuer or secured party hereby authorizes Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuer or secured party under any Loan Document, or otherwise payable or distributable by Agent to such Lender, Issuer or secured party under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that Agent has demanded to be returned under immediately preceding clause (a). For the avoidance of doubt, the failure to deliver a notice to Agent pursuant to this Section 14.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 14.15(a) or on whether or not an Erroneous Payment has been made. (d) (i)(i) In the event that an Erroneous Payment (or portion thereof) is not recovered by Agent for any reason, after demand therefor in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon Agent’s notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by 108 |
the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by Agent in such instance)), and is hereby (together with Borrower) deemed to execute and deliver a Commitment Transfer Supplement (or, to the extent applicable, an agreement incorporating a Commitment Transfer Supplement by reference pursuant to an applicable electronic platform as to which Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to Borrower or Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, (D) Agent and Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. (ii) Subject to Section 15.3 (but excluding, in all events, any assignment consent or approval requirements (whether from Borrower or otherwise)), Agent may, in its discretion, sell any Advances acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and Agent shall retain all other rights, remedies and claims against such Xxxxxx (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by Agent) and (y) may, in the sole discretion of Agent, be reduced by any amount specified by Agent in writing to the applicable Lender from time to time. (e) The parties hereto agree that (x) irrespective of whether Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, Issuer or secured party, to the rights and interests of such Lender, Issuer or secured party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Advances that have been assigned to Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Borrower or any other Loan Party; provided that this Section 14.15 shall not be interpreted to increase (or accelerate the due date for), or have the effect 109 |
of payment (including without limitation rights of set-off) with respect to the portion of such Advances held by it or other Obligations payable hereunder as fully as if such Participant were a Lender and the direct holder of such Advance provided that Borrower shall not be required to pay to any Participant more than the amount which it would have been required to pay to Lender which granted an interest in its Advances or other Obligations payable hereunder to such Participant had such Xxxxxx retained such interest in the Advances hereunder or other Obligations payable hereunder and in no event shall Borrower be required to pay any such amount arising from the same circumstances and with respect to the same Advances or other Obligations payable hereunder to both such Xxxxxx and such Participant. For the avoidance of doubt, each Participant shall not be entitled to the benefits of Section 3.10 unless such Participant complies with Section 3.10(g) as if it were a Lender. Each Loan Party hereby grant to any Participant a continuing security interest in any deposits, moneys or other property actually or constructively held by such Participant as security for the Participant’s interest in the Advances. Each Lender shall retain the sole right to approve, without the consent of the Participant, any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents other than any amendment, modification or waiver of the type specified in clause (i), (iv) or (vi) of Section 15.2(b) as it relates to Participant’s interest in the Obligations. Each Lender that sells participations to a Participant, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain a register on which it enters the name and address of each Participant and the principal amount of and interest owing with respect to the participation sold to each such Participant (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c)of the U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive (absent manifest error), and Borrower and the Lenders shall treat each Person whose name is recorded in such Participant Register pursuant to the terms hereof as a participant for all purposes of this Agreement, notwithstanding notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as such) shall have no responsibility for maintaining a Participant Register. (c) Any Lender may, with the consent of Agent and Borrower, which consent shall not be unreasonably withheld or delayed, sell, assign or transfer all or any part of its rights under this Agreement and the other Loan Documents to another Lender or to one or more additional banks or financial institutions (other than Disqualified Institutions) and one or more additional banks or financial institutions may commit to make Advances hereunder (each a “Purchasing Lender”), in minimum amounts of not less than $5,000,000 and integral multiples of $1,000,000 in excess thereof, pursuant to a Commitment Transfer Supplement, executed by a Purchasing Lender, the transferor Lender, and Agent and delivered to Agent for recording; provided that no assignment shall be made to (i) a Loan Party or any of a Loan Party’s Affiliates or Subsidiaries or (ii) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii) (provided that Borrower shall be deemed to have consented to any such assignment unless it shall have objected thereto by written notice to the Agent within 10 Business Days after having received notice thereof). The consent of Agent and Xxxxxxxx shall not be required in the case of an assignment by a Lender to another Lender or to an Affiliate of a Lender or an Approved Fund (each, an “Eligible Assignee”), and the consent of Borrower shall not be required at any time that an Event of Default under Sections 10.1, 10.7, or 10.8 has occurred and is continuing hereunder. Upon such execution, delivery, acceptance and recording, from and after the transfer effective date determined pursuant to such Commitment Transfer Supplement, (i) Purchasing Lender thereunder shall be a party hereto and, to the extent provided in such Commitment Transfer Supplement, have the rights and obligations of a Lender thereunder with a Commitment Percentage as set forth therein (including, for the avoidance of doubt, such obligations under Section 3.10(g)), and (ii) the transferor Lender thereunder 113 |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective Authorized Officers as of the day and year first above written. VEECO INSTRUMENTS INC., as Borrower By:_______________________________ Name: Title: VEECO PROCESS EQUIPMENT INC., as a Guarantor By:_______________________________ Name: Title: VEECO APAC LLC, as a Guarantor By:_______________________________ Name: Title: HSBC BANK USA, NATIONAL ASSOCIATION as Agent, Issuer and as a Lender By:_______________________________ Name: Signature page to Loan and Security Agreement |
Title: [OTHER LENDERS] By:_______________________________ Name: Title: Signature page to Loan and Security Agreement |
Signature page to Loan and Security Agreement |