Contract
Exhibit 10.1
Execution Version
FIRST AMENDMENT, dated as of August 20, 2020 (this “First Amendment”), among 0-000-Xxxxxxx.xxx, Inc. (the “Company”), the subsidiary
borrowers party hereto (together with the Company, the “Borrowers”), the subsidiary guarantors party hereto (the “Guarantors”), the lenders party hereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other entities party
hereto. All capitalized undefined terms used in this First Amendment shall have the meanings assigned thereto in the Credit Agreement (as defined below).
W I T N E S S E T H
WHEREAS, the Borrowers, the Guarantors, the lenders party thereto (the “Existing Lenders”), the Administrative Agent and the other
agents and entities party thereto are party to that certain Second Amended and Restated Credit Agreement, dated as of May 31, 2019 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit
Agreement”; and as further amended by this First Amendment, the “Amended Credit Agreement”).
WHEREAS, the Company wishes to (a) increase the Revolving Credit Commitments by $50,000,000 (such increase, the “Additional RC
Facilities”; the loans thereunder, the “Additional Revolving Loans”) and (b) obtain a new $100,000,000 senior secured term loan facility under the Credit Agreement (the “Term Loan A-1 Facility”; together with the Additional RC
Facilities, the “New Facilities”; loans under the Term Loan A-1 Facility, the “Term Loans A-1”);
WHEREAS, the proceeds of the New Facilities will be used for the general corporate purposes of the Company and its Subsidiaries;
WHEREAS, the Company has requested that the Administrative Agent and the Existing Lenders agree to certain amendments to the Credit
Agreement in the manner provided for herein;
WHEREAS, certain of the lenders party hereto (the “Additional RC Facilities Lenders”) are willing to provide commitments under the
Additional RC Facilities on the First Amendment Effective Date (as defined below);
WHEREAS, the Additional RC Facilities shall, together with the existing Revolving Credit Commitments under the Credit Agreement, form
part of a single Class, having the same terms and conditions, and all Additional Revolving Loans shall constitute Revolving Credit Loans;
WHEREAS, certain of the lenders party hereto (the “Term Lenders A-1”; together with the Additional RC Facilities Lenders, the “New
Facilities Lenders”) are willing to provide the Term Loans A-1 on the First Amendment Effective Date;
WHEREAS, the New Facilities are not being incurred under Section 2.11(c) or (d) of the Credit Agreement and are not subject to the
requirements applicable thereunder;
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WHEREAS, the Existing Lenders party hereto (the “Approving Existing Lenders”) constituting Required Lenders under the Credit
Agreement, and the Administrative Agent are willing to agree to the terms of this First Amendment and the amendments to the Credit Agreement effected hereby; and
WHEREAS, JPMorgan Chase Bank, N.A. and Xxxxx Fargo Securities, LLC will act as joint lead arrangers and joint bookrunners in connection
with this First Amendment (collectively and in such capacities, the “Arrangers”).
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein set forth, the parties hereto agree as follows:
ARTICLE 1.
AMENDMENTS
AMENDMENTS
Effective as of the First Amendment Effective Date, the Credit Agreement is hereby amended as follows:
(a) The Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.
(b) Schedule 1.01(a) to the Credit Agreement is hereby deleted in its entirety and replaced with Schedule 1.01(a) to this First Amendment.
(c) Exhibit B to this First Amendment is added as a new Exhibit B-3 to the Credit Agreement.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers represents and warrants (as to itself and each of its Subsidiaries) to the lenders party hereto that:
(a) The execution, delivery and performance of this First Amendment are within each Borrower’s and each other Loan Party’s corporate powers and have been duly
authorized by all necessary corporate and, if required, by all necessary shareholder action. This First Amendment has been duly executed and delivered by each Loan Party party hereto and this First Amendment and the Amended Credit Agreement
constitute the legal, valid and binding obligations of each such Loan Party, enforceable against each such Loan Party in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
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(b) The representations and warranties set forth in Article IV of the Amended Credit Agreement and in the other Loan Documents are true and correct in all material
respects (without duplication of any materiality qualifier contained therein) immediately prior to, and after giving effect to, the New Facilities on and as of the First Amendment Effective Date as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
(c) At the time of and immediately after giving effect to this First Amendment, no Default has occurred and is continuing or would result from the New Facilities.
ARTICLE 3.
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
This First Amendment shall become effective on the first date on which the following conditions have been satisfied or waived (the “First Amendment
Effective Date”):
(a) Executed Counterparts. The Administrative Agent shall have received executed counterparts of this First Amendment from each Loan Party, each Approving
Existing Lender (constituting Required Lenders under the Credit Agreement), each Issuing Lender and each New Facilities Lender.
(b) Borrowing Request. The Administrative Agent shall have received a Borrowing Request in respect of the Term Loans A-1.
(c) Corporate Documents. The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of this First Amendment and the New Facilities and any other legal matters relating to the Loan Parties, this First Amendment or the
New Facilities, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) Opinion of Counsel to the Loan Parties. The Administrative Agent shall have received (i) a written opinion (addressed to the Administrative Agent, the
Issuing Lenders and the Lenders party hereto and dated the First Amendment Effective Date) of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if
requested by the Administrative Agent, written opinions of such other counsel for the Loan Parties as is satisfactory to the Administrative Agent (addressed to the Administrative Agent, the Issuing Lenders and the Lenders party hereto and dated the
First Amendment Effective Date), in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Parties, this First Amendment or the New Facilities as the Administrative Agent shall
reasonably request (and the Company hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(e) Officer’s Certificate. The Administrative Agent shall have received a certificate dated the First Amendment Effective Date and signed by a senior
executive officer of the Company, certifying on behalf of the Company the accuracy of the representations and warranties set forth in Article 2 hereof.
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(f) Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate executed by the chief financial officer of the Company in the
form of Exhibit F of the Credit Agreement, dated as of the First Amendment Effective Date and certifying, on behalf of the Company and after giving effect to the New Facilities, as to the matters set forth therein.
(g) Lien Searches. The Administrative Agent shall have received the results of recent lien searches in each relevant jurisdiction with respect to the Loan
Parties, and such searches shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.02 of the Credit Agreement or Liens to be discharged pursuant to documentation or arrangements reasonably satisfactory
to the Administrative Agent.
(h) Flood Hazards. The Administrative Agent shall have received for each Mortgaged Property (i) a completed “life-of-loan” Federal Emergency Management
Agency standard flood hazard determination, (ii) if such Mortgaged Property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area, a notice about special flood hazard
area status and flood disaster assistance duly executed by the Borrower and the applicable Loan Party relating thereto) and (iii) if such Mortgaged Property is located in an area identified by the Federal Emergency Management Agency (or any
successor agency) as a special flood hazard area, a copy of an insurance policy, or a declaration page relating to an insurance policy, in either case showing coverage for flood insurance in an amount reasonably satisfactory to the Administrative
Agent, the lenders party hereto and the Issuing Lenders and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws, each of which shall (A) be endorsed or otherwise amended to
include a “standard” or “New York” lender's loss payable or mortgagee endorsement (as applicable), (B) name the Administrative Agent, on behalf of the Secured Parties, as additional insured and loss payee/mortgagee, (C) identify the address of each
property located in a special flood hazard area, the applicable flood zone designation and the flood insurance coverage and deductible relating thereto and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent,
the lenders party hereto and the Issuing Lenders. The Administrative Agent has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the Flood Insurance Laws. However, the Administrative
Agent reminds each lender party hereto and participant that, pursuant to the Flood Insurance Laws, each federally regulated lender (whether acting as a lender or participant in the facility) is responsible for assuring its own compliance with the
flood insurance requirements.
(i) Fees and Expenses. All fees and expenses required to be paid or reimbursed (and, in the case of expenses, invoiced at least two Business Days before the
First Amendment Effective Date) to the Administrative Agent, the lenders party hereto and the Arrangers shall have been paid in full in cash on or before the First Amendment Effective Date or authorized to be deducted from the gross proceeds of the
Term Loans A-1 funded on the First Amendment Effective Date.
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(j) USA PATRIOT Act, Beneficial Ownership and Insurance Certificate. The Administrative Agent, any lender party hereto and the Arrangers shall have received,
at least 3 Business Days prior to the First Amendment Effective Date, all documentation and other information with respect to the Loan Parties that shall have been reasonably requested by the Administrative Agent, any lender party hereto or any
Arranger in writing at least 5 Business Days prior to the First Amendment Effective Date that the Administrative Agent, any lender party hereto or any Arranger reasonably determines is required by regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and 31 C.F.R. § 1010.230.
ARTICLE 4.
POST-CLOSING OBLIGATIONS
POST-CLOSING OBLIGATIONS
(a) Within 30 days of the First Amendment Effective Date (as such time period may be extended by the Administrative Agent in its sole discretion) the Company will
cause XxxxxxxxxxxxxxxXxxx.xxx, LLC to satisfy the requirements of Section 6.11(a) of the Credit Agreement.
(b) Within 90 days of the First Amendment Effective Date (as such time period may be extended by the Administrative Agent in its sole discretion) the Administrative
Agent shall have received with respect to each Mortgaged Property, in each case in form and substance reasonably acceptable to the Administrative Agent, either:
(i) written or e-mail confirmation from local counsel in the jurisdiction in which the Mortgaged Property is located
substantially to the effect that: (i) the recording of the existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the Lien created by such mortgage as security for the Secured Obligations (as
defined in the Security Agreement), including the obligations evidenced by this First Amendment and the other documents executed in connection herewith, for the benefit of the Secured Parties, and (ii) no other documents, instruments, filings,
recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes are necessary under applicable law in order to maintain the continued enforceability, validity or
priority of the Lien created by such mortgage as security for the Secured Obligations, including the obligations evidenced by this First Amendment and the other documents executed in connection herewith, for the benefit of the Secured Parties; or
(ii) (A) an amendment to the existing Mortgage (the “Mortgage Amendment”) to reflect the matters set forth in this First
Amendment, duly executed and acknowledged by the applicable Loan Party, and in form for recording in the recording office where such Mortgage was recorded, together with such certifications, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof under applicable law;
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(B) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering the enforceability of the
applicable Mortgage as amended by the Mortgage Amendment;
(C) a date down endorsement to each existing mortgagee title insurance policy or, if not available, a new Title Policy,
disclosing no additional liens or title exceptions against the Mortgaged Properties other than Permitted Liens, extending the date of such mortgagee's title insurance policy to the date of recordation of such Mortgage Amendment, and shall
otherwise be in form and substance reasonably acceptable to the Administrative Agent;
(D) evidence of payment by the Borrower of all escrow charges and related charges, mortgage recording taxes, fees, charges and
costs and expenses required for the recording of the Mortgage Amendment; and
(E) such affidavits, certificates, information and instruments of indemnification as shall be required to induce the title
company to issue the endorsement (or other title product) contemplated above and evidence of payment of all applicable title insurance premiums, search and examination charges, and related charges required for the issuance of the endorsement.
ARTICLE 5.
GENERAL
GENERAL
(a) Establishment of New Facilities. The Lenders party hereto hereby acknowledge and agree that the New Facilities are not being incurred under Section 2.11(c) or (d) of the Credit Agreement
and are not subject to the requirements applicable thereunder.
(b) Limited Effect. Except as expressly provided herein, the Credit Agreement and the other Loan Documents shall remain unmodified and in full force and effect. This First Amendment shall not
be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Credit Agreement or any other Loan Document or a waiver of any Default or Event of Default, (b) to prejudice any right or rights
which the Administrative Agent or the Existing Lenders may now have or may have in the future under or in connection with the Amended Credit Agreement or the other Loan Documents or any of the instruments or agreements referred to therein, as the
same may be amended, restated, supplemented or modified from time to time, or (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Company or any other Person with respect to
any waiver, amendment, modification or any other change to the Credit Agreement or the Loan Documents or any rights or remedies arising in favor of Lenders or Administrative Agent, or any of them, under or with respect to any such documents.
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(c) Construction. On and after the First Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”,
“herein” or words of like import, and each reference to the Credit Agreement in any other Loan Document, shall be deemed a reference to the Amended Credit Agreement. This First Amendment shall constitute a Loan Document for all purposes of the
Credit Agreement and the other Loan Documents.
(d) Acknowledgement and Reaffirmation. By its execution hereof, each of the Company and the other Loan Parties party hereto hereby expressly agrees, with
respect to each Loan Document (as defined in the Amended Credit Agreement) to which it is a party (a) all of its obligations, liabilities and indebtedness under such Loan Document shall remain in full force and effect on a continuous basis
regardless of the effectiveness of this First Amendment, (b) nothing contained in this First Amendment shall be construed as a substitution or novation of its obligations, liabilities and indebtedness under such Loan Document and (c) all of the
liens and security interests created by and arising under such Loan Document remain in full force and effect on a continuous basis, regardless of the effectiveness of this First Amendment, as collateral security for its obligations, liabilities and
indebtedness under the Amended Credit Agreement and related Guarantees.
(e) Execution in Counterparts; Loan Document. This First Amendment may be executed by one or more of the parties to this First Amendment on any number of
separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this First Amendment
and/or any document to be signed in connection with this First Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), electronic deliveries or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. “Electronic Signatures” means
any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
(f) Governing Law. THIS FIRST AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(g) Successors and Assigns. This First Amendment shall be binding on and inure to the benefit of the parties and their respective heirs, beneficiaries, successors and permitted assigns.
(h) Severability. Any provision of this First Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction.
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(i) Incorporation by Reference. The provisions of Sections 10.09(b), 10.09(c), 10.09(d) and 10.10 of the Credit Agreement are hereby incorporated by
reference, mutatis mutandis.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year
first above written.
| 0-000-XXXXXXX.XXX, INC. |
||
| By: |
/s/ Xxxxxxx X. Xxxx |
|
| |
Name: Xxxxxxx X. Xxxx | |
| Title: Senior Vice President, Treasurer and Chief Financial Officer |
||
[Signature Page to First Amendment]
| SUBSIDIARY BORROWERS: |
||
| BLOOMNET, INC. |
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| NAPCO MARKETING CORP. |
||
| DESIGNPAC GIFTS LLC |
||
| 800-FLOWERS, INC. |
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| XXXXXX & CO. |
||
| THE POPCORN FACTORY, INC. |
||
| By: |
/s/ Xxxxxxx X. Xxxx |
|
| Name: Xxxxxxx X. Xxxx |
||
| Title: Vice President and Treasurer |
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| XXXXX & XXXXX HOLDINGS, INC. |
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| XXXXX AND XXXXX, LLC |
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| By: |
/s/ Xxxxxx X. Xxxx III |
|
| Name: Xxxxxx X. Xxxx III |
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| Title: Senior Vice President and Treasurer |
||
[Signature Page to First Amendment]
| SUBSIDIARY GUARANTORS: |
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| XXXXXX’X, INC. |
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| 1-800-FLOWERS RETAIL INC. |
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| 1-800-FLOWERS TEAM SERVICES, INC. |
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| 0-000-XXXXXXX.XXX FRANCHISE CO., INC. |
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| BLOOMNET, INC. |
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| XXXXXXXXXXXX.XXX, LLC |
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| DESIGNPAC CO., INC. |
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| FLOWERAMA OF AMERICA, INC. |
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| GREAT FOODS, LLC |
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| GUARDED REALTY HOLDINGS, LLC |
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| NAPCO MARKETING CORP. |
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| FRESH GIFT CARDS, INC. |
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| DESIGNPAC GIFTS LLC |
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| 1-800-FLOWERS SERVICE SUPPORT CENTER, INC. |
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| 800-FLOWERS, INC. |
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| XXXXXX & CO. |
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| XXXXXXXXX.XXX, LLC |
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| PERSONALIZATION UNIVERSE, LLC |
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| THE POPCORN FACTORY, INC. |
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| By: |
/s/ Xxxxxxx X. Xxxx |
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| Name: Xxxxxxx X. Xxxx |
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| Title: Vice President and Treasurer |
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| XXXXX & XXXXX HOLDINGS, INC. |
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| XXXXX AND XXXXX, LLC |
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| BEAR CREEK ORCHARDS, INC. |
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| XXXXX & XXXXX OPERATIONS, INC. |
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| By: |
/s/ Xxxxxx X. Xxxx III |
|
| Name: Xxxxxx X. Xxxx III |
||
| Title: Senior Vice President and Treasurer |
||
[Signature Page to First Amendment]
| JPMORGAN CHASE BANK, N.A., as |
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| Administrative Agent, Approving Existing Lender, |
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| Issuing Lender, Additional RC Facilities Lender |
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| and Term Lender A-1 |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxxxxx |
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| Title: Executive Director |
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[Signature Page to First Amendment]
| Xxxxx Fargo Bank, National Association, as |
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| Approving Existing Lender, Issuing Lender, |
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| Additional RC Facilities Lender and Term Lender A-1 |
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| By: |
/s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx |
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| Title: Vice President |
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[Signature Page to First Amendment]
| Citibank, N.A., as |
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| Approving Existing Lender, Additional RC |
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| Facilities Lender and Term Lender A-1 |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx |
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| Title: Authorized Signatory |
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[Signature Page to First Amendment]
| BANK OF AMERICA, N.A., as |
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| Approving Existing Lender, Additional RC |
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| Facilities Lender and Term Lender A-1 |
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| By: |
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx |
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| Title: Senior Vice President |
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[Signature Page to First Amendment]
| T.D. Bank, N.A., as |
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| Approving Existing Lender, Additional RC |
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| Facilities Lender and Term Lender A-1 |
||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: Xxxx Xxxxxxxxx |
||
| Title: Vice President |
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[Signature Page to First Amendment]
| Capital One, N.A., as |
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| Approving Existing Lender, Additional RC |
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| Facilities Lender and Term Lender A-1 |
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| By: |
/s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx |
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| Title: Duly Authorized Signatory |
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[Signature Page to First Amendment]
| KeyBank, National Association, as |
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| Approving Existing Lender, Additional RC |
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| Facilities Lender and Term Lender A-1 |
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| By: | /s/ Xxxxx Xxxxxx-Xxxxxx | |
| Name: Xxxxx Xxxxxx-Xxxxxx |
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| Title: S.V.P |
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[Signature Page to First Amendment]
| HSBC Bank USA, N.A., as |
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| Approving Existing Lender |
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| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx |
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| Title: Senior Vice President #21440 |
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[Signature Page to First Amendment]
SCHEDULE 1.01(a)
Commitments
|
Name of Lender
|
Revolving Credit
Commitment
|
Term Commitment A-1
|
|
JPMorgan Chase Bank, N.A.
|
$44,250,000.00
|
$18,500,000.00
|
|
Xxxxx Fargo Bank, National Association
|
$44,250,000.00
|
$18,500,000.00
|
|
Citibank, N.A.
|
$35,500,000.00
|
$16,000,000.00
|
|
Bank of America, N.A.
|
$34,375,000.00
|
$13,750,000.00
|
|
TD Bank, N.A.
|
$34,375,000.00
|
$13,750,000.00
|
|
Capital One, N.A.
|
$33,916,666.67
|
$12,833,333.33
|
|
KeyBank, National Association
|
$16,666,666.66
|
$6,666,666.67
|
|
HSBC Bank USA, N.A.
|
$6,666,666.67
|
$0.00
|
|
TOTAL
|
$250,000,000.00
|
$100,000,000.00
|
Exhibit A
[Attached]
EXHIBIT A
ADDED TEXT SHOWN UNDERSCORED;
DELETED TEXT SHOWN STRIKETHROUGH
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
May 31, 2019, as amended by
the First Amendment, dated as of August 20, 2020
among
0-000-XXXXXXX.XXX, INC.,
The SUBSIDIARY BORROWERS Party Hereto,
The GUARANTORS Party Hereto,
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
____________
JPMORGAN CHASE BANK, N.A.
and
XXXXX FARGO SECURITIES, LLC
and
XXXXX FARGO SECURITIES, LLC
as Joint Lead Arrangers and Joint Bookrunners
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent
and
BANK OF AMERICA, N.A.,
CAPITAL ONE, N.A.,
CITIBANK, N.A.
and
TD Bank, N.A.
as Co-Documentation Agents
═══════════════════════════════════════════════════════
TABLE OF CONTENTS
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Page
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| ARTICLE I DEFINITIONS | 1 | |
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SECTION 1.01
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Defined Terms
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1
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SECTION 1.02
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Terms Generally
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SECTION 1.03
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Accounting Terms; GAAP
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SECTION 1.04
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Interest Rates; LIBOR Notification
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| ARTICLE II THE CREDITS |
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SECTION 2.01
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Term Commitments and Term Commitments A-1
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SECTION 2.02
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Procedure for Term Loan and Term Loan A-1 Borrowings
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SECTION 2.03
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Repayment of Term Loans and Term Loans A-1
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SECTION 2.04
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Revolving Credit Commitments
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SECTION 2.05
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Loans and Borrowings
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SECTION 2.06
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Requests for Revolving Credit Borrowings
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SECTION 2.07
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[Reserved].
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SECTION 2.08
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Letters of Credit and Acceptances
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SECTION 2.09
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Funding of Borrowings
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SECTION 2.10
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Interest Elections
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SECTION 2.11
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Termination, Reduction and Increase of the Commitments
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SECTION 2.12
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Repayment of Revolving Credit Loans; Evidence of Debt
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SECTION 2.13
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Prepayment of Loans.
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SECTION 2.14
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Fees
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SECTION 2.15
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Interest
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SECTION 2.16
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Alternate Rate of Interest
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SECTION 2.17
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Increased Costs
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SECTION 2.18
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Break Funding Payments
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SECTION 2.19
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Taxes
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SECTION 2.20
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Payments Generally; Pro Rata Treatment; Sharing of Set offs
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SECTION 2.21
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Mitigation Obligations; Replacement of Lenders
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SECTION 2.22
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Designation of Subsidiary Borrowers
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SECTION 2.23
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Defaulting Lenders
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SECTION 2.24
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XXXX Event
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ARTICLE III GUARANTEE
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SECTION 3.01
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The Guarantee
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SECTION 3.02
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Obligations Unconditional
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SECTION 3.03
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Reinstatement
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SECTION 3.04
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Subrogation
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SECTION 3.05
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Remedies
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SECTION 3.06
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Instrument for the Payment of Money
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SECTION 3.07
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Continuing Guarantee
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SECTION 3.08
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Rights of Contribution
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| SECTION 3.09 |
General Limitation on Guarantee Obligations
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| SECTION 3.10 |
Termination or Release
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64 |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES |
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| SECTION 4.01 |
Organization; Powers
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| SECTION 4.02 |
Authorization; Enforceability
|
|
| SECTION 4.03 |
Governmental Approvals; No Conflicts
|
|
| SECTION 4.04 |
Financial Condition; No Material Adverse Change
|
|
| SECTION 4.05 |
Properties
|
|
| SECTION 4.06 |
Litigation and Environmental Matters
|
|
| SECTION 4.07 |
Compliance with Laws and Contractual Obligations
|
|
| SECTION 4.08 |
Investment Company Act Status
|
|
| SECTION 4.09 |
Taxes
|
|
| SECTION 4.10 |
ERISA
|
|
| SECTION 4.11 |
Disclosure
|
|
| SECTION 4.12 |
Use of Credit
|
|
| SECTION 4.13 |
Labor Matters
|
|
| SECTION 4.14 |
Subsidiaries
|
|
| SECTION 4.15 |
Security Documents
|
|
| SECTION 4.16 |
Anti-Corruption Laws and Sanctions.
|
|
| SECTION 4.17 |
Solvency
|
|
| SECTION 4.18 |
EEAAffected Financial Institution
|
|
| ARTICLE V CONDITIONS | ||
| SECTION 5.01 |
Conditions to Second Restatement Effective Date
|
|
| SECTION 5.02 |
Each Credit Event
|
|
| ARTICLE VI AFFIRMATIVE COVENANTS |
||
| |
||
| SECTION 6.01 |
Financial Statements and Other Information
|
|
| SECTION 6.02 |
Notices of Material Events
|
|
| SECTION 6.03 |
Existence; Conduct of Business
|
|
| SECTION 6.04 |
Payment of Taxes and Other Obligations
|
|
| SECTION 6.05 |
Maintenance of Properties
|
|
| SECTION 6.06 |
Maintenance of Insurance
|
|
| SECTION 6.07 |
Books and Records
|
|
| SECTION 6.08 |
Inspection Rights
|
|
| SECTION 6.09 |
Compliance with Laws and Contractual Obligations
|
|
| SECTION 6.10 |
Use of Proceeds and Letters of Credit
|
|
| SECTION 6.11 |
Additional Subsidiary Guarantors; Real Property; Further Assurances
|
|
| SECTION 6.12 |
Post-Closing Covenant.
|
|
| ARTICLE VII NEGATIVE COVENANTS |
|
|
| SECTION 7.01 |
Indebtedness
|
|
| SECTION 7.02 |
Liens
|
|
| SECTION 7.03 |
Mergers, Consolidations, Etc
|
|
| SECTION 7.04 |
Dispositions
|
|
| SECTION 7.05 |
Lines of Business
|
|
| SECTION 7.06 |
Investments and Acquisitions
|
|
| SECTION 7.07 |
Restricted Payments
|
|
| SECTION 7.08 |
Transactions with Affiliates
|
|
| SECTION 7.09 |
Restrictive Agreements
|
|
| SECTION 7.10 |
Swap Agreements
|
|
| SECTION 7.11 |
Financial Covenants
|
|
| SECTION 7.12 |
Sale-Leasebacks
|
|
| SECTION 7.13 |
Modifications of Organizational Documents
|
|
| SECTION 7.14 |
Use of Proceeds and Letters of Credit
|
|
| ARTICLE VIII EVENTS OF DEFAULT | ||
| ARTICLE IX THE ADMINISTRATIVE AGENT |
||
| SECTION 9.01 | Appointment and Authorization of Agents | |
| SECTION 9.02 |
Certain ERISA Matters
|
|
| ARTICLE X MISCELLANEOUS | ||
| SECTION 10.01 |
Notices
|
|
| SECTION 10.02 |
Waivers; Amendments.
|
|
| SECTION 10.03 |
Expenses; Indemnity; Damage Waiver
|
|
| SECTION 10.04 |
Successors and Assigns; Participations
|
|
| SECTION 10.05 |
Survival
|
|
| SECTION 10.06 |
Counterparts; Integration; Effectiveness
|
|
| SECTION 10.07 |
Severability
|
|
| SECTION 10.08 |
Right of Setoff
|
|
| SECTION 10.09 |
Governing Law; Jurisdiction; Consent to Service of Process
|
|
| SECTION 10.10 |
WAIVER OF JURY TRIAL
|
|
| SECTION 10.11 |
Headings
|
|
| SECTION 10.12 |
Confidentiality
|
|
| SECTION 10.13 |
USA XXXXXXX Xxx
|
|
| SECTION 10.14 |
Authorization of Company
|
|
| SECTION 10.15 |
No Advisory or Fiduciary Responsibility
|
|
| SECTION 10.16 |
Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions
|
|
| SECTION 10.17 |
No Novation
|
|
| SECTION 10.18 |
Acknowledgement Regarding Any Supported QFCs
|
103 |
| SCHEDULE 1.01(a) |
– Commitments
|
| SCHEDULE 1.01(b) |
– Mortgaged Properties
|
| SCHEDULE 4.06(a) |
– Litigation
|
| SCHEDULE 4.06(b) |
– Environmental Matters
|
| SCHEDULE 4.14 |
– Subsidiaries
|
| SCHEDULE 7.01 |
– Existing Indebtedness; Existing Letters of Credit
|
| SCHEDULE 7.02 |
– Existing Liens
|
| SCHEDULE 7.06 |
– Existing Investments
|
| SCHEDULE 7.09 |
– Restrictive Agreements
|
| SCHEDULE 10.01 | – Addresses for Notices |
| EXHIBIT A |
Form of Assignment and Assumption
|
| EXHIBIT B-1 |
Form of Term Loan Note
|
| EXHIBIT B-2 |
Form of Revolving Credit Note
|
| EXHIBIT B-3 |
Form of Term Loan A-1 Note
|
| EXHIBIT C |
Form of Subsidiary Joinder Agreement
|
| EXHIBIT D-1 |
Form of Subsidiary Borrower Designation Letter
|
| EXHIBIT D-2 |
Form of Termination Letter
|
| EXHIBIT E |
Form of U.S. Tax Compliance Certificate
|
| EXHIBIT F |
Form of Solvency Certificate
|
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 31, 2019 (, as amended by the First Amendment, dated as of August 20, 2020 (as further amended, restated, supplemented or otherwise modified from time
to time, this “Agreement”), among 0-000-XXXXXXX.XXX, INC., the SUBSIDIARY BORROWERS party hereto, the GUARANTORS party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Company (as hereinafter defined) entered into that certain Amended and Restated Credit Agreement, dated as of December 23, 2016 (as amended,
supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”), among the Company, the subsidiary borrowers party thereto, the guarantors party thereto, the several lenders party thereto and JPMorgan Chase Bank,
N.A., as administrative agent;
WHEREAS, the parties hereto have agreed to amend and restate the Existing Credit Agreement as provided in this Agreement, which Agreement shall become
effective upon the satisfaction of the conditions precedent set forth in Section 5.01 hereof;
WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities existing under the
Existing Credit Agreement and that this Agreement amend and restate in its entirety the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the above premises, the parties hereto hereby agree that on the Second Restatement Effective Date (as defined below),
the Existing Credit Agreement shall be amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.01 Defined Terms. As used in
this Agreement, the following terms have the meanings specified below:
“ABR” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptance Fee” has the meaning set forth in Section 2.14(d).
“Acceptances” has the meaning set forth in Section 2.08(a).
“Acquisition” mean the acquisition by the Company or any other Loan Party of (a) Capital Stock of any other Person if, after giving effect thereto,
(i) at least 80% of the Capital Stock of such other Person is owned by the Company or any other Loan Party, (ii) such other Person is consolidated with the Company in accordance with GAAP and (iii) such other Person is a Subsidiary Guarantor, (b) all
or substantially all of the assets of any other Person or (c) assets constituting one or more business units of any other Person.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
1
“Administrative Agent” means JPMCB, in its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA
Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified.
“Alternate Base Rate” means, on any date, a fluctuating interest rate per annum equal to the greatest of: (a) the Prime Rate in effect on such day,
(b) the New York Fed Bank Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate on such day (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in Dollars with a maturity of one month
plus 1%; provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Adjusted LIBO Rate or the New York Fed Bank Rate shall be effective from and including the effective date of such change
in the Prime Rate, the Adjusted LIBO Rate or the New York Fed Bank Rate, respectively. If the Alternative Base Rate is being used as an alternative rate of interest pursuant to Section 2.16, then the Alternative Base Rate shall be the greater of (a)
and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternative Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for
purposes of this Agreement.
“Ancillary Document” has the meaning set forth in
Section 10.06.
“Anti-Corruption Laws” means the Foreign Corrupt Practices Act, as amended.
“Applicable Increase” means (x) 0.75 to 1.00 for the Reference Period ending on the last day of the fiscal quarter in which a Material Acquisition
is consummated and the Reference Period ending on the last day of the first full fiscal quarter following the consummation of such Material Acquisition, (y) 0.50 to 1.00 for the Reference Periods ending on the last day of the second and third full
fiscal quarters following the consummation of such Material Acquisition and (z) 0.25 to 1.00 for the Reference Periods ending on the last day of the fourth and fifth full fiscal quarters following the consummation of such Material Acquisition (it
being understood that no Applicable Increase shall apply for any Reference Period ending on or after the last day of the sixth full fiscal quarter following the applicable Material Acquisition).
“Applicable Percentage” means with respect to any Lender, the percentage of the total Commitments or Loans of all Classes hereunder represented by
the aggregate amount of such Lender’s Commitments or Loans of all Classes hereunder; provided that for purposes of Section 2.23 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the total Commitment
(disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment.
“Applicable Rate” means,
2
(a) for any day, with respect to any ABR Loan or Eurodollar Loan (other than any ABR Term Loan A-1 or Eurodollar Term Loan A-1), or with respect to the commitment fees or acceptance fees payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread/Acceptance Fee” or “Commitment Fee Rate”, respectively, based upon the Consolidated Leverage Ratio as of the most recent determination date:
|
Consolidated Leverage
Ratio:
|
ABR
Spread |
Eurodollar
Spread/Acceptance
Fee
|
Commitment Fee
Rate
|
|
Category 1
Greater than 3.50:1.00 |
1.25%
|
2.25%
|
0.35%
|
|
Category 2
Greater than 2.50:1.00 but less than or equal to
3.50:1.00
|
1.00%
|
2.00%
|
0.30%
|
|
Category 3
Greater than 1.50:1.00 but less than or equal to
2.50:1.00
|
0.75%
|
1.75%
|
0.25%
|
|
Category 4
Less than or equal to 1.50:1.00
|
0.50%
|
1.50%
|
0.20%
|
(b) with respect to any ABR Term Loan A-1 or Eurodollar Term Loan A-1, (i) until delivery of financial statements pursuant to Section 6.01 (a) of this Agreement for the fiscal year ended June 28, 2020, a rate per annum equal to (A) for ABR Term Loans A-1, 1.75% and (B) for Eurodollar Term Loans A-1, 2.75% and (ii) for any day thereafter, the applicable rate per annum set forth below under the caption “ABR Spread” or “Eurodollar Spread”, respectively, based upon the Consolidated Leverage Ratio as of the most recent determination date:
|
Consolidated Leverage
Ratio:
|
ABR
Spread |
Eurodollar Spread
|
|
Category 1
Greater than 3.50:1.00 |
2.25%
|
3.25%
|
|
Category 2
Greater than 2.50:1.00 but less than or equal to
3.50:1.00
|
2.00%
|
3.00%
|
|
Category 3
Greater than 1.50:1.00 but less than or equal to
2.50:1.00
|
1.75%
|
2.75%
|
|
Category 4
Less than or equal to 1.50:1.00
|
1.50%
|
2.50%
|
3
For purposes of each of the foregoing subclauses (a) and (b), (i) the Consolidated Leverage Ratio shall be determined as of the end of each fiscal quarter of the
Company based upon the Company’s consolidated financial statements delivered pursuant to Section 6.01(a) or (b) of this Agreement (or Section 6.01(a) or (b) of the Existing Credit Agreement, as applicable) (and the related compliance certificate
delivered pursuant to Section 6.01(c) of this Agreement (or Section 6.01(c) of the Existing Credit Agreement, as applicable)) and (ii) each change in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall be effective
during the period commencing on and including the date three Business Days after delivery to the Administrative Agent of such consolidated financial statements and compliance certificate indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the Consolidated Leverage Ratio shall be deemed to be in Category 1 (A) at any time that an Event of Default has occurred and is continuing or (B) if the Company fails to
deliver the consolidated financial statements (and related compliance certificate) required to be delivered by it pursuant to Section 6.01(a), (b) and/or (c), during the period from the expiration of the time for delivery thereof specified in such
Sections until such financial statements and compliance certificate are delivered. In the event that any financial statement or certification delivered pursuant to Section 6.01 is shown to be inaccurate, and such inaccuracy, if corrected, would have
led to the application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, the Borrowers shall immediately (a) deliver to the Administrative Agent a corrected
compliance certificate for such Applicable Period, (b) determine the Applicable Rate for such Applicable Period based upon the corrected compliance certificate, and (c) immediately pay to the Administrative Agent for the benefit of the Lenders the
accrued additional interest and other fees owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly distributed by the Administrative Agent to the Lenders entitled thereto. It is acknowledged
and agreed that nothing contained herein shall limit the rights of the Administrative Agent and the Lenders under the Loan Documents.
“Applicable Withholding Agent” has the meaning set forth in Section 2.19(a).
“Approved Fund” means any Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the
primary benefit of a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Asset Sale” means any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c), (d), (e), (g) or (h) of Section 7.04) that yields gross proceeds to the Company or its Subsidiaries (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess of $5,000,000.
“Assignment and Assumption” means an assignment and assumption entered into by an assignee (with the consent of any party whose consent is required
by Section 10.04) and, except as otherwise set forth in Section 2.21(b), the relevant Lender, in each case, in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) approved by the
Administrative Agent.
“Assuming Revolving Credit Lender” has the meaning set forth in Section 2.11(c).
“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 EEAAffected Financial
Institution.
4
“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).
“Banking Services” means each and any of the following bank services provided to any Loan Party by any Lender or any Affiliate of any Lender: (a)
commercial credit cards, other commercial cards, purchase cards and merchant card services, (b) stored value cards, (c) treasury management services or other payment services (including, without limitation, electronic payment service, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan”
(as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA
or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”.
“BHC Act Affiliate” of a party means an “affiliate’
(as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower” means the Company or any Subsidiary Borrower, as applicable.
“Borrower Guaranteed Obligations” has the meaning set forth in Section 3.01(b).
“Borrower Obligations” means, with respect to any Borrower, all of the Obligations of such Borrower.
“Borrowing” means (a) all ABR Loans of the same Class made, converted or continued on the same date or (b) all Eurodollar Loans of the same Class
that have the same Interest Period.
“Borrowing Request” means a request by a Borrower for a Borrowing in accordance with Section 2.06.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by
law to remain closed; provided that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
“Capital Expenditures” means, for any period, expenditures (including the aggregate amount of Capital Lease Obligations incurred during such period)
made by the Company or any of its Subsidiaries to acquire or construct fixed assets, plant and equipment (including renewals, improvements and replacements, but excluding repairs) during such period computed in accordance with GAAP; provided
that, for purposes of calculating the Consolidated Fixed Charge Coverage Ratio, there shall be excluded from Capital Expenditures expenditures made by the Company and its Subsidiaries in connection with (A) logistical and distribution automation
projects, in an aggregate amount not to exceed, during the Reference Period ending on June 30, 2019 and thereafter, $25,000,000, and (B) acquisition, construction, and/or development of housing facilities for harvesting employees and laborers, in an
aggregate amount not to exceed, during the Reference Period ending on June 30, 2019 and thereafter, $4,000,000.
5
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Cash Equivalent” means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from Xxxxx’x;
(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) of this
definition and entered into with a financial institution satisfying the criteria described in clause (c) of this definition; and
(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are
rated AAA by S&P and Aaa by Xxxxx’x and (iii) have portfolio assets of at least $5,000,000,000.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the First Restatement Effective Date) (other than Xxxxx X. XxXxxx, Xxxxxxxxxxx X. XxXxxx and their respective descendants and/or trusts for their benefit and any other
Person Controlled by any of the foregoing (collectively, the “XxXxxx Group”)), of shares representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed or approved for election as directors by
directors so nominated or (c) the XxXxxx Group (as defined above) shall cease to own a majority of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company.
6
“Change in Law” means (a) the adoption of any law, rule or regulation after the Second Restatement Effective Date, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any Governmental Authority after the Second Restatement Effective Date or (c) compliance by any Lender or any Issuing Lender (or, for purposes of Section 2.17(b), by any lending office
of such Lender or by such Lender’s or such Issuing Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Second Restatement Effective
Date.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Term Loans, Term Loans A-1, Revolving Credit Loans or Incremental Term Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Term Commitment, Term Commitment A-1 or a Revolving Credit Commitment.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means as to any Lender, the sum of the Term Commitment, Term Commitment A-1 and the Revolving Credit Commitment of such Lender.
“Co-Documentation Agents” means the Co-Documentation Agents identified on the cover page of this Agreement.
“Company” means 0-000-XXXXXXX.XXX, Inc., a Delaware corporation.
“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) Consolidated Interest Expense, amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, non-cash losses on sales of assets outside of the ordinary course of
business and any impairment charges), (f) any non-cash stock-based compensation expense relating to stock options and restricted stock granted to employees or directors, (g) any non-cash charges resulting from writeoffs or write-downs of inventory
during such period directly or indirectly attributable to Acquisitions permitted under this Agreement, (h) any non-recurring legal fees and settlement costs of up to $3,000,000 in the aggregate incurred on or prior to the date that is 18 months from
the Second Restatement Effective Date, (i) the amount of cost savings and synergies projected by the Company in good faith to be realized in connection with any Material Acquisition (calculated on a pro forma basis in accordance with Article 11 of
Regulation S-X of the Securities Act of 1933 as though such cost savings, and synergies had been realized on the first day of such period and as if such cost savings and synergies were realized during the entirety of such period), net of the amount
of actual benefits realized during such period from such actions; provided that the aggregate amount of such cost savings and synergies added pursuant to this clause (i) shall not exceed 10% of Consolidated EBITDA for the applicable Reference
Period as calculated without giving effect to such adjustments; provided further that in the case of such cost savings and synergies that are not permitted by Article 11 of Regulation S-X, the Company may include such additional cost
savings and synergies in connection with any Material Acquisition as long as it delivers a duly completed certificate signed by a Responsible Officer of the Company to the Administrative Agent together with the certificate required to be delivered
pursuant to Section 6.01(c), certifying that such cost savings and synergies are reasonably identifiable, quantifiable, factually supportable and reasonably anticipated to be realizable in the good faith judgment of the Company within 18 months after
the consummation of such Material Acquisition, which is expected to result in such cost savings or synergies; and provided further no cost savings and synergies shall be added pursuant to this clause (i) to the extent duplicative of
any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and, (j) the amount of all other non-cash charges, losses or expenses for such period, (k) any non-recurring fees and expenses incurred or paid in connection with the acquisition of XxxxxxxxxxxxxxxXxxx.xxx, LLC and the transactions contemplated by the definitive acquisition agreement in respect
thereof, including, without limitation, any due diligence costs, any financial, accounting, tax and other advisory fees and expenses, any litigation or legal fees and expenses and settlement costs, any payments to officers, employees and
directors as change of control payments, severance payments, special or retention bonuses and charges for repurchase or rollover of, or modifications to, stock options and/or restricted stock and charges related to the crediting of additional
restricted stock units, and (l) any non-recurring fees and expenses incurred or paid in connection with the First Amendment and the related increase of the Revolving Credit Commitments and borrowing of the Term Loans A-1, including, without
limitation, any legal fees and expenses, commissions, discounts and other fees and charges associated with the foregoing, and minus, (a) to the extent included in the statement of such Consolidated Net Income for such period,
the sum of (i) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (ii) any other non-cash income and (b) any cash payments made during such period in respect of items described in clause (e) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses
were reflected as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis.
7
For the purposes of calculating Consolidated EBITDA for any Reference Period, (x) if at any time during such Reference Period the Company or any Subsidiary
shall have made any Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Disposition for such Reference
Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (y) if during such Reference Period the Company or any Subsidiary shall have made an Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving pro forma effect thereto as if such Acquisition occurred on the first day of such Reference Period.
“Consolidated Fixed Charge Coverage Ratio” means, at any date, the ratio of (a) Consolidated EBITDA for the Reference Period ended on, or most
recently ended prior to, such date, plus, without duplication and to the extent reflected as a charge in the statement of Consolidated Net Income for such Reference Period, Consolidated Lease Expenses for such Reference Period, minus, Capital
Expenditures made during such Reference Period (except to the extent financed with proceeds of Indebtedness that has not been repaid), to (b) Consolidated Fixed Charges for such Reference Period.
“Consolidated Fixed Charges” means, for any period, the sum of (i) Consolidated Interest Expense for such period plus (ii) Consolidated
Lease Expenses for such period plus (iii) Restricted Payments made under Section 7.07(d) during such period plus (iv) the next four regularly scheduled payments of principal of Indebtedness scheduled to occur in the period of four
consecutive fiscal quarters commencing on such date. For the avoidance of doubt, the foregoing clause (iv) shall not include any payments of principal of outstanding Revolving Credit Loans.
8
“Consolidated Funded Debt” means, at any date, all Indebtedness of the Company and its Subsidiaries that matures more than one year from the date of
its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its
creation and, in the case of the Borrowers, Indebtedness in respect of the Loans, determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, for any period, total interest expense (including that attributable to Capital Lease Obligations) of the
Company and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Company and its Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP), minus (i) interest income of the Company and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP and (ii) writeoff of debt issuance costs, including without limitation all commissions, discounts and other fees and charges related to, or as a result of, the Existing Credit
Agreement and the entering into of this Agreement incurred during the Company’s fiscal year 2019.
“Consolidated Lease Expenses” means, for any period, the aggregate amount of fixed and contingent rentals payable by the Company or any Subsidiary
for such period with respect to operating leases of real and personal property, minus the aggregate amount of cash rentals received by the Company or any Subsidiary in respect of subleases of any such property for such period, determined on a
consolidated basis in accordance with GAAP.
“Consolidated Leverage Ratio” means, at any date, the ratio of (a) the aggregate principal amount of all Consolidated Funded Debt on such date to
(b) Consolidated EBITDA for the Reference Period ended on, or most recently ended prior to, such date.
“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or loss) of any Person (other than a Subsidiary of the Company) in which the Company or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by the Company or such Subsidiary in the form of dividends or similar distributions and (b) the undistributed earnings of any Subsidiary of the Company (other than a Loan Party) to the
extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Covered Entity” means any of the
following:
9
| (i) |
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
|
| (ii) |
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
|
| (iii) |
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
|
“Covered Party” has the meaning set forth in Section
10.18.
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
“Default Right” has the meaning assigned to that term
in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender, as reasonably determined by the Administrative Agent, that has (a) failed to fund its portion of any
Borrowing, or any portion of its participation in any Letter of Credit or Acceptance, within three Business Days of the date on which it shall have been required to fund the same, unless the subject of a good faith dispute based on a reasonable
determination under the circumstances between the applicable Borrower and such Lender, (b) notified the Company, the Administrative Agent, any Issuing Lender or any other Lender in writing that it does not intend to comply with any of its funding
obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, (c) failed, within
three Business Days after reasonable request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans (unless the subject of a good faith dispute based on a
reasonable determination under the circumstances between the relevant Borrower and such Lender) and participations in then outstanding Letters of Credit and Acceptances; provided that any such Lender shall cease to be a Defaulting Lender
under this clause (c) upon receipt of such confirmation by the Administrative Agent, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of
the date when due, unless the subject of a good faith dispute, (e) (i) been (or has a parent company that has been) adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets to be,
insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its
business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any
action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, unless in the case of any Lender referred to in this clause (e) the Borrowers, the Administrative Agent and each Issuing Lender
shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder, or (f) has, or has a direct or indirect parent company that has, become the subject of a Bail-In
Action. For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in such Lender or its parent by a Governmental Authority.
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“Disclosed Matters” means the actions, suits and proceedings disclosed in Schedule 4.06(a) and the environmental matters disclosed in Schedule
4.06(b).
“Disposition” means, with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition
thereof through one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise (excluding the sale by the Company of its own Capital Stock).
“Dividing Person” has the meaning assigned to it in the definition of “Division”.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons
(whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets,
liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a
Division Successor upon the occurrence of such Division.
“Dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary of the Company organized or incorporated under the laws of any jurisdiction within the United States of
America.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the
supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member
Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature” means an electronic symbol or
process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating to pollution or protection of the environment and public health (to the extent relating to exposure to Hazardous Material), preservation or reclamation of natural resources,
including those relating to the management, release or threatened release of any Hazardous Material.
11
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Company or any Subsidiary arising under any Environmental Law and resulting from (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
“Equity Rights” means, with respect to any Person, any subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind
(including any shareholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or securities convertible into, any additional shares of Capital Stock of any class or type of such Person.
“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations promulgated thereunder, each as amended and
modified from time to time.
“ERISA Affiliate” means (a) any entity, whether or not incorporated, that is under common control with any Borrower within the meaning of Section
4001(a)(14) of ERISA and (b) any trade or business (whether or not incorporated) that, together with any Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414(m) or (o) of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Pension
Plan (other than an event for which the 30 day notice period is waived); (b) the existence with respect to any Pension Plan of a non-exempt Prohibited Transaction; (c) any failure by any Pension Plan to satisfy the minimum funding standards (within
the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (d) the filing pursuant to Section 412 of the Code or Section 302(c) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan, or the failure by any Borrower or any of their ERISA Affiliates
to make any required contribution to a Multiemployer Plan; (e) the incurrence by any Borrower or any of their ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension Plan; (f) a determination that any
Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (g) the receipt by any Borrower or any of their ERISA Affiliates from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the incurrence by any Borrower or any of their ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; (i) the receipt by any Borrower or any of their ERISA Affiliates of any notice from any plan administrator of any Multiemployer Plan concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); or (j) the imposition of liability on any
Borrower or any of their respective ERISA Affiliates pursuant to Section 4062(e) of ERISA with respect to any Pension Plan.
“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.
12
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
“Event of Default” has the meaning assigned to such term in Article VIII.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Subsidiary” means (i) any Domestic Subsidiary acquired pursuant to a Permitted Acquisition or Investment that is subject to Indebtedness
permitted to be assumed under Section 7.01(d) and any Domestic Subsidiary thereof acquired in connection therewith that guarantees such Indebtedness, in each case to the extent, and so long as, such Indebtedness prohibits such Domestic Subsidiary
from becoming a Guarantor, (ii) any Domestic Subsidiary that is prohibited by any applicable law, rule or regulation, or by any contractual obligation existing on the Second Restatement Effective Date or on the date any such Domestic Subsidiary is
acquired or organized (so long as, in respect of any such contractual prohibition, such prohibition is not incurred in contemplation of the Second Restatement Effective Date or such acquisition or organization, as applicable), in each case from
guaranteeing the Obligations (and for so long as such restriction or any replacement or renewal thereof is in effect), or which would require governmental (including regulatory) or applicable works council consent, approval, license or authorization
to provide a guarantee unless such consent, approval, license or authorization has been received, or for which the provision of a guarantee or grant of a Lien would result in adverse tax consequences to the Company or one of its Subsidiaries (as
reasonably determined by the Company in consultation with the Administrative Agent), and (iii) each Immaterial Subsidiary; provided that any such Domestic Subsidiary shall cease to be an Excluded Subsidiary at such time as clauses (i), (ii)
or (iii) above cease to apply.
“Excluded Swap Obligation” means with respect to any Loan Party, any obligation (a “Swap 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, if, and to the extent that, all or a portion of the guarantee of such Loan Party of, or the grant by such Loan Party of a security
interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of
any thereof). If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or
becomes illegal.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on (or measured by) its net income and franchise or similar Taxes imposed by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or as a result of any other present or former connection with such jurisdiction
(other than any such connections arising solely from such recipient having executed, delivered, or become a party to, performed its obligations or received payments under, received or perfected a security interest under, engaged in any other
transaction pursuant to, or enforced, any Loan Documents), (b) any branch profits Taxes imposed on any Lender by the United States of America or any similar Tax imposed by a jurisdiction described in clause (a), (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Company under Section 2.21(b)), any United States withholding Tax (i) that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the applicable Borrower
with respect to such withholding Tax pursuant to Section 2.19(a), or (ii) that is attributable to the Foreign Lender’s failure to comply with Section 2.19(e), and (d) any Taxes imposed under FATCA.
13
“Existing Credit Agreement” has the meaning set forth in the recitals hereto.
“Existing LC Disbursements” means “LC Disbursements” under and as defined in the Existing Credit Agreement.
“Existing Lenders” means “Lenders” under and as defined in the Existing Credit Agreement.
“Existing Letters of Credit” means each letter of credit currently outstanding under the Existing Credit Agreement and listed on Schedule 7.01
hereto.
“Existing Revolving Credit Commitment” means “Revolving Credit Commitments” under and as defined in the Existing Credit Agreement.
“Existing Revolving Credit Lenders” means “Revolving Credit Lenders” under and as defined in the Existing Credit Agreement.
“Existing Revolving Credit Loans” means “Revolving Credit Loans” under and as defined in the Existing Credit Agreement.
“Existing Term Lenders” means “Term Lenders” under and as defined in the Existing Credit Agreement.
“Existing Term Loans” means “Term Loans” under and as defined in the Existing Credit Agreement.
“FATCA” means Sections 1471 through 1474 of the Code, as of the Second Restatement Effective Date (or any amended or successor version that is
substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any law, regulation, rule,
promulgation, or official agreement implementing an official government agreement with respect to the foregoing.
“Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the rate calculated by the New York Fed based on such day’s
federal funds transactions by depository institutions (as determined in such manner as the New York Fed shall set forth on its public website from time to time) and published on the next succeeding Business Day by the New York Fed as the federal
funds effective rate.
“First Amendment” means the First Amendment, dated as
of the First Amendment Effective Date, to this Agreement.
“First Amendment Effective Date” means August 20,
2020.
“First Restatement Effective Date” means December 23, 2016.
14
“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Reform Act of 1994 (which
comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in
effect or any suc-cessor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Lender” means any Lender or Issuing Lender that is not a “United States person” as defined by Section 7701(a)(30) of the Code.
“Foreign Subsidiary” means any Subsidiary of the Company that is not a Domestic Subsidiary.
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit, bankers’ acceptance or letter of guaranty issued to support such Indebtedness or obligation; provided
that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“Guaranteed Obligations” means, collectively, the Borrower Guaranteed Obligations, the Subsidiary Borrower Guaranteed Obligations and the Subsidiary
Guarantor Guaranteed Obligations.
“Guaranteed Parties” means, collectively, the Lenders, the Issuing Lenders, the Administrative Agent, any other holder from time to time of any
Guaranteed Obligations and, in each case, their respective successors and assigns.
“Guarantors” means the Company and the Subsidiary Guarantors, in each case with respect to its respective Guaranteed Obligations.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
15
“IBA” has the meaning set forth in Section 1.04.
“Immaterial Subsidiary” means, at any date of determination, each Domestic Subsidiary of the Company that has been designated by the Company in
writing to the Administrative Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not redesignated as a material subsidiary as provided below), which, as of the Second Restatement Effective Date, are 18F Virginia, Inc.,
Xxxxxxx.xxx, LLC and Xxxxxx.xxx, LLC; provided that (a) for purposes of this Agreement, at no time shall (i) the total assets of all Immaterial Subsidiaries at the last day of the most recent Reference Period equal or exceed 5.0% of the total
assets of the Company and its Subsidiaries at such date or (ii) the gross revenues for such Reference Period of all Immaterial Subsidiaries equal or exceed 5.0% of the consolidated gross revenues of the Company and its Subsidiaries for such period,
in each case determined in accordance with GAAP, (b) the Company shall not designate any new Immaterial Subsidiary if such designation would not comply with the provisions set forth in clause (a) above, and (c) if the total assets or gross revenues
of all Subsidiaries so designated by the Company as “Immaterial Subsidiaries” (and not redesignated as “material subsidiaries”) shall at any time exceed the limits set forth in clause (a) above, then all such Subsidiaries shall be deemed to be
material subsidiaries unless and until the Company shall redesignate one or more Immaterial Subsidiaries as material subsidiaries, in each case in a written notice to the Administrative Agent, and, as a result thereof, the total assets and gross
revenues of all Subsidiaries still designated as “Immaterial Subsidiaries” do not exceed such limits; and provided further that the Company may designate and re-designate a Subsidiary as an Immaterial Subsidiary at any time, subject to
the terms set forth in this definition.
“Impacted Interest Period” has the meaning assigned to it in the definition of “LIBO Rate.”
“Increasing Revolving Credit Lender” has the meaning set forth in Section 2.11(c).
“Incremental Term Loan” has the meaning set forth in Section 2. 11(d).
“Incremental Term Loan Effective Date” has the meaning set forth in Section 2. 11(d).
“Incremental Term Loan Lender” has the meaning set forth in Section 2. 11(d).
“Incremental Term Loan Maturity Date” means with respect to any Incremental Term Loans to be made pursuant to any Incremental Term Loan Supplement,
the maturity date specified in such Incremental Term Loan Supplement, which date shall be a date at least six months after the Term Loan Maturity Date.
“Incremental Term Loan Supplement” has the meaning set forth in Section 2.11(d).
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in
the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party
in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (k) the liquidation value of all preferred Capital Stock of such Person that is mandatorily
redeemable on or prior to the date that is six months after the Term Loan Maturity Date or, if later, the latest Incremental Term Loan Maturity Date. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide
that such Person is not liable therefor.
16
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Insolvent” means, with respect to any Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA.
“Interest Election Request” means a request by a Borrower to convert or continue a Borrowing in accordance with Section 2.10.
“Interest Payment Date” means (a) with respect to any ABR Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable thereto 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 intervals of three months’ duration after the first day of such
Interest Period.
“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months or (if agreed to by all the Lenders of the applicable Class of Loans) twelve months thereafter, as the applicable Borrower may elect; 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 and (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. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing, and the date of a Borrowing comprising Loans of any Class that have been converted or continued shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Interpolated Rate” means, at any time, for any Impacted Interest Period, the rate per annum (rounded to the same number of decimal places as the
LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the
longest period for which the LIBO Screen Rate is available for Dollars that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period for which that LIBO Screen Rate is available for Dollars that is longer
than the Impacted Interest Period, in each case, as of approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Impacted Interest Period. When determining the Interpolated Rate for a period which is shorter than the
shortest period for which the LIBO Screen Rate is available, the LIBO Screen Rate for purposes of clause (a) above shall be deemed to be the overnight rate for Dollars determined by the Administrative Agent from such service as the Administrative
Agent may select.
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“Investment” means, by any Person, (a) the amount paid or committed to be paid, or the value of property or services contributed or committed to be
contributed, by such Person for or in connection with the acquisition by such Person of any stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person and (b) the amount of any advance, loan or
extension of credit by such Person, to any other Person, or guaranty or other similar obligation of such Person with respect to any Indebtedness of such other Person (other than Indebtedness constituting trade payables in the ordinary course of
business), and (without duplication) any amount committed to be advanced, loaned, or extended by such Person to any other Person, or any amount the payment of which is committed to be assured by a guaranty or similar obligation by such Person for the
benefit of, such other Person.
“Issuing Lender” means each of JPMCB and Xxxxx Fargo Bank, National Association, each in its capacity as the issuer of Letters of Credit (including
Existing Letters of Credit) or Acceptances hereunder, and in each case its successors in such capacity as provided in Section 2.08(k). Each Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued or Acceptances
to be created by Affiliates of such Issuing Lender, in which case the term “Issuing Lender” shall include any such Affiliate with respect to Letters of Credit issued or Acceptances created by such Affiliate.
“Joint Bookrunners” means the Joint Bookrunners identified on the cover page of this Agreement.
“Joint Lead Arrangers” means the Joint Lead Arrangers identified on the cover page of this Agreement.
“JPMCB” means JPMorgan Chase Bank, N.A.
“LC Disbursement” means a payment made by an Issuing Lender pursuant to a Letter of Credit or an Acceptance.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers at such time plus the aggregate face amount of unmatured Acceptances at such time. The LC Exposure of any Revolving Credit Lender at
any time shall be its Revolving Percentage of the total LC Exposures at such time.
“Lenders” means the Persons listed on Schedule 1.01(a) and any other Person that shall have become a party hereto pursuant to an Assignment and
Assumption or an instrument entered into pursuant to Section 2.11(c), other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Letter of Credit” means any standby or commercial letter of credit issued pursuant to this Agreement.
“Letter of Credit Documents” means, with respect to any Letter of Credit or any Acceptance, collectively, any application therefor and any other
agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit or such Acceptance) governing or providing for (a) the rights and obligations of the parties concerned or at risk with
respect to such Letter of Credit or such Acceptance or (b) any collateral security for any of such obligations, each as the same may be modified and supplemented and in effect from time to time.
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“Letter of Credit Sublimit Amount” means, with respect to each Issuing Lender, $10,000,000 (or $20,000,000 in the aggregate) under the Working
Capital Sublimit; provided that the amount of Acceptances at any one time outstanding shall not exceed $1,000,000 in the aggregate.
“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, a rate per annum equal to the London interbank offered rate as
administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for Dollars for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters Screen that
displays such rate (or, in the event such rate does not appear on either of such Reuters pages, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes
such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case the “LIBO Screen Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period; provided that if the LIBO Screen Rate shall be less than zero (or in the case of the Term Loans A-1, less than 0.75%),
such rate shall be deemed to be zero (or in the case of the Term Loans A-1, deemed to be 0.75%) for purposes of this
Agreement; provided further that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) with respect to Dollars, then the LIBO Rate shall be the Interpolated Rate at
such time (provided that if any Interpolated Rate shall be less than zero (or in the case of the Term Loans A-1, less than 0.75%),
such rate shall be deemed to be zero (or in the case of the Term Loans A-1, deemed to be 0.75%) for purposes of this
Agreement).
“LIBO Screen Rate” has the meaning assigned to it in the definition of “LIBO Rate.”
“LIBO Screen Rate” has the meaning assigned to it in the definition of “LIBO Rate.”
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Loan Documents” means, collectively, this Agreement, any Subsidiary Borrower Designation Letters, the Letter of Credit Documents, the promissory
notes (if any) executed and delivered pursuant to Section 2.12(e), the Security Documents and any amendment, waiver, supplement or other modification to any of the foregoing.
“Loan Parties” means the Borrowers and the Guarantors.
“Loans” means the loans made by the Lenders to any or all the Borrowers pursuant to this Agreement.
“Margin Stock” means “margin stock” within the meaning of Regulations T, U and X of the Board.
“Material Acquisition” means an Acquisition consummated in the fiscal
quarter ending April 1, 2019 or in any fiscal quarter thereafter involving aggregate consideration in excess of $25,000,000.
“Material Adverse Effect” means a material adverse effect on (a) the business, property, operation or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, or (b) the ability of the
Loan Parties to perform their respective obligations hereunder and under the other Loan Documents or (c) the validity or enforceability of this Agreement or any other Loan Document or the rights or remedies of the Administrative Agent and the
Lenders hereunder or thereunder.
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“Material Indebtedness” means Indebtedness (other than the Loans, Letters of Credit and Acceptances), or obligations in respect of one or more Swap
Agreements, of any one or more of the Company and its Subsidiaries in an aggregate outstanding principal amount exceeding $15,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Company
or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Company or any Subsidiary would be required to pay if such Swap Agreement were terminated at such
time.
“Material Real Property” has the meaning set forth in Section 6.11(b).
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Mortgage” means each mortgage, deed of trust, security deed or like instrument granting a Lien on any Mortgaged Property given by any of the Loan
Parties, as grantor, to the Administrative Agent, each such Mortgage to be in form and substance reasonably satisfactory to the Administrative Agent.
“Mortgage Amendment” has the meaning set forth in Section 6.12(a).
“Mortgaged Properties” shall mean the real property listed on Schedule 1.01(b) and any real property which may from time to time the subject of a
Mortgage pursuant to Section 6.11.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds” means (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received), net of (i) attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness (including principal, premium or penalty, if any, and interest, breakage costs or other amounts) secured by a Lien expressly permitted
hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary fees and expenses actually incurred in connection therewith, (ii) taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (iii) the amount of any reserves established by the Company and the Subsidiary Guarantors in
accordance with GAAP to fund purchase price adjustment, indemnification and similar contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly
attributable to the occurrence of such event (as determined reasonably and in good faith by a Responsible Officer) and (b) in connection with any incurrence of Indebtedness, the cash proceeds received from such incurrence, net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.
“New York Fed” means the Federal Reserve Bank of New York.
“New York Fed Bank Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank
Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if both such rates are not so published for any day that is a Business Day, the term “New York Fed Bank
Rate” means the rate quoted for such day for a federal funds transaction at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any
of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
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“Obligations” means, collectively, (a) all of the Indebtedness, liabilities and obligations of any Loan Party to the Administrative Agent, the
Lenders and/or the Issuing Lenders arising under the Loan Documents (including all reimbursement obligations in respect of Letters of Credit or Acceptances), in each case whether fixed, contingent (including without limitation those Obligations
incurred as a Guarantor pursuant to Article III), now existing or hereafter arising, created, assumed, incurred or acquired, and whether before or after the occurrence of any Event of Default under clause (h) or (i) of Article VIII and including any
obligation or liability in respect of any breach of any representation or warranty and all post-petition interest and funding losses, whether or not allowed as a claim in any proceeding arising in connection with such an event, (b) all obligations of
any Loan Party owing to any Lender or any Affiliate of any Lender, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extension and modifications thereof and substitutions
therefor) in connection with Banking Services and (c) all obligations of any Loan Party under or in respect of Specified Swap Agreements (other than any Excluded Swap Obligations arising under any Specified Swap Agreement). The term ‘Obligations”
shall include Borrower Obligations, Subsidiary Borrower Obligations and Subsidiary Guarantor Obligations.
“Other Taxes” means any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies
arising from any payment made under this Agreement or any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings by
U.S.–managed banking offices of depository institutions (as such composite rate shall be determined by the New York Fed as set forth on its public website from time to time) and published on the next succeeding Business Day by the New York Fed as an
overnight bank funding rate (from and after such date as the New York Fed shall commence to publish such composite rate).
“Participant” has the meaning set forth in Section 10.04(c).
“Participant Register” has the meaning set forth in Section 10.04(c).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in Section 4002 of ERISA and any successor entity performing similar
functions.
“Pension Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Permitted Liens” means:
(a) Liens imposed by law for taxes that are not yet due and payable or delinquent or are being contested in compliance with Section
6.04;
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(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law (including Liens arising
under or by reason of the Perishable Agricultural Commodities Act of 1930, as amended from time to time), arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in
compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations (other than any such obligation imposed
pursuant to Section 430(k) of the Code or 303(k) of ERISA), surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights of way and other similar encumbrances and charges on real property imposed by law or arising
in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;
(g) leases of the properties of any Loan Party granted by such Loan Party to third parties entered into in the ordinary course of
business which do not materially interfere with the business of the Company and its Subsidiaries; and
(h) with respect to any Mortgaged Property, the matters listed as exceptions to title on Schedule B of the Title Policy covering such
Mortgaged Property and the matters disclosed in any survey delivered to the Administrative Agent with respect to such Mortgaged Property;
provided that the term “Permitted Liens” shall not include any Lien securing Indebtedness.
“Permitted Refinancing” means, with respect to any Person, any modification (other than a release of such Person), refinancing, refunding, renewal or
extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified,
refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon, plus amounts that would otherwise be permitted under Section 7.01 (with such amounts being deemed utilization of the applicable basket
or exception under Section 7.01) plus other reasonable amounts paid, and fees, expenses, commissions, tender premiums and underwriting discounts, reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension
and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under Section 7.01, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(d), such
modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and, in the case of any amortizing Indebtedness, has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is secured by a Lien on the
collateral under the Security Documents, the Lien securing such Indebtedness as modified, refinanced, refunded, renewed or extended shall not be senior in priority to the Lien on such collateral securing the Indebtedness being modified, refinanced,
refunded, renewed or extended unless otherwise permitted under this Agreement, (d) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(d), at the time thereof, no Event of Default shall
have occurred and be continuing, and (e) (i) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or
extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being so modified, refinanced, refunded, renewed or extended, (ii) the
terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not
materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended (other than in the case of terms applying to periods after the then latest
maturity date of any Loans or Commitments hereunder or otherwise added for the benefit of the Lenders hereunder); provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior
to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Company has determined in good faith
that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Company within such five Business Day period
that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by a Person who is an obligor of the
Indebtedness being so modified, refinanced, refunded, renewed or extended.
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“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases
to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any
similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date
such change is publicly announced or quoted as being effective.
“Prohibited Transaction” has the meaning assigned to such term in Section 406 of ERISA and Section 4975(c) of the Code.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“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 set forth in Section 10.18.
“Quarterly Dates” means the last Business Day of September, December, March and June in each year, the first of which shall be the first such day
after the Second Restatement Effective Date.
“Recovery Event” means any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating
to any asset of the Company or its Subsidiaries.
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“Reference Period” means any period of four consecutive fiscal quarters of the Company.
“Register” has the meaning set forth in Section 10.04(b)(iv).
“Reinvestment Deferred Amount” means with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by the Company or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term Loans and the Term Loans A-1 as a result of the
delivery of a Reinvestment Notice.
“Reinvestment Event” means any Asset Sale or Recovery Event in respect of which the Company has delivered a Reinvestment Notice.
“Reinvestment Notice” means a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing and
that the Company (directly or indirectly through a Subsidiary) intends and expects to use (x) all or a specified portion of the Net Cash Proceeds of an Asset Sale to acquire or repair other assets (other than current assets) useful in its business or
(y) all or a specified portion of the Net Cash Proceeds of Recovery Event (i) to repair or acquire replacements of any current assets (including prepaid assets) lost, damaged or destroyed in connection with such Recovery Event and/or (ii) to acquire
or repair other assets (other than current assets) useful in its business.
“Reinvestment Prepayment Amount” means (a) with respect to any Asset Sale constituting a Reinvestment Event, the Reinvestment Deferred Amount
relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire or repair assets (other than current assets) useful in the Company’s business and (b) with respect to any Recovery Event constituting a
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date (i) to repair or acquire replacements of any current assets (including prepaid assets) lost, damaged or
destroyed in connection with such Recovery Event and (ii) to acquire or repair other assets (other than current assets) useful in the Company’s business.
“Reinvestment Prepayment Date” means with respect to any Reinvestment Event, the earlier of (a) the date occurring 24 months after the receipt by
the Company of proceeds relating to such Reinvestment Event and (b) the date on which the Company shall have determined not to, or shall have otherwise ceased to, acquire or repair the applicable assets useful in the Company’s business with all or
any portion of the relevant Reinvestment Deferred Amount.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person’s Affiliates.
“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures, outstanding Term Loans, outstanding Term Loans A-1, outstanding Incremental Term Loans and unused Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures, outstanding Term Loans, outstanding Term Loans A-1, outstanding Incremental Term Loans and unused
Commitments at such time. The “Required Lenders” of a particular Class of Loans means Lenders having Revolving Credit Exposures, outstanding Term Loans, outstanding Term Loans A-1, outstanding Incremental Term Loans and/or unused Commitments of such Class, as applicable, representing more than 50% of the total Revolving Credit Exposures, outstanding Term Loans,
outstanding Term Loans A-1, outstanding Incremental Term Loans and/or unused Commitments of such Class, as applicable, at such
time.
“Required Ratio” has the meaning set forth in Section 7.11(a).
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“Requirement of Law” means, as to any Person, the certificate of incorporation and bylaws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property
is subject.
“Resolution Authority” means an EEA Resolution
Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president or chief financial officer of the Company, but in any event, with respect to
financial matters, the chief financial officer of the Company.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of
the Company or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any
such Capital Stock of the Company or any option, warrant or other right to acquire any such Capital Stock of the Company.
“Revolving Credit”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.04.
“Revolving Credit Availability Period” means the period from and including the Second Restatement Effective Date to but excluding the earlier of the
Revolving Credit Commitment Termination Date and the date of termination of the Revolving Credit Commitments.
“Revolving Credit Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Credit Loans and to
acquire participations in Letters of Credit and Acceptances hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or increased from time
to time pursuant to Section 2.11 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The initial amount of each Lender’s Revolving Credit Commitment is set forth on Schedule 1.01(a)
under the caption “Revolving Credit Commitment”, or in the Assignment and Acceptance or other instrument pursuant to which such Lender shall have assumed its Revolving Credit Commitment, as applicable. On the Second Restatement Effective Date, the
aggregate amount of the Revolving Credit Commitments is $200,000,000. On the First Amendment Effective Date, the aggregate amount of the
Revolving Credit Commitments is $250,000,000.
“Revolving Credit Commitment Increase” has the meaning set forth in Section 2.11(c).
“Revolving Credit Commitment Increase Date” has the meaning set forth in Section 2.11(c).
“Revolving Credit Commitment Termination Date” means May 31, 2024.
“Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any time, the sum of (a) the outstanding principal amount of such
Lender’s Revolving Credit Loans and (b) the LC Exposure of such Lender at such time; provided that at any time a Defaulting Lender exists, in the determination of Revolving Credit Exposure of any Revolving Credit Lender for purposes of
Section 2.04, the LC Exposure of such Revolving Credit Lender shall be adjusted to give effect to any reallocation effected pursuant to Section 2.23(d).
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“Revolving Credit Lender” means a Lender with a Revolving Credit Commitment or, if the Revolving Credit Commitments have terminated or expired, a
Lender with Revolving Credit Exposure.
“Revolving Credit Loans” means the loans made by the Lenders to the Borrowers pursuant to Section 2.04.
“Revolving Percentage” with respect to any Revolving Credit Lender, the percentage of the total Revolving Credit Commitments represented by such
Revolving Credit Lender’s Revolving Credit Commitment; provided that for purposes of Section 2.23 when a Defaulting Lender shall exist, “Revolving Percentage” shall mean the percentage of the total Revolving Credit Commitments (disregarding
any Defaulting Lender’s Revolving Credit Commitment) represented by such Lender’s Revolving Credit Commitment. With respect to the Revolving Credit Lenders, if the Revolving Credit Commitments have terminated or expired, the Revolving Percentages
shall be determined on the basis of the percentage of the total Revolving Credit Exposures represented by such Revolving Credit Lender’s Revolving Credit Exposure, giving effect to any assignments and any Lender’s status as a Defaulting Lender at the
time of determination (including any reallocation of LC Exposure pursuant to Section 2.23(d)).
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business.
“Sanctioned Country” means, at any time, a country, region or territory that is itself the subject or
target of any Sanctions (as of the Second Restatement Effective Date, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).
“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 or the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned 50% or more by any such Person or Persons described in
the foregoing clauses (a) or (b).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered
or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.
“SEC” means the Securities and Exchange Commission, or any regulatory body that succeeds to the functions thereof.
“Second Restatement Effective Date” means the date on which the conditions specified in Section 5.01 are satisfied (or waived in accordance with
Section 10.02).
“Secured Parties” has the meaning set forth in the Security Agreement.
“Security Agreement” means the Security Agreement, dated as of September 30, 2014 (as amended, supplemented, reaffirmed or otherwise modified from
time to time), among the Loan Parties and the Administrative Agent.
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“Security Documents” means, collectively, the Security Agreement, the Mortgages and each of the security agreements and other instruments and
documents executed and delivered pursuant thereto, each Subsidiary Joinder Agreement, any security or similar agreement entered into pursuant to Section 6.11 in favor of the Administrative Agent, and all Uniform Commercial Code financing statements
required by the terms of any such agreement to be filed with respect to the security interests created pursuant thereto.
“Solvent” means, when used with respect to any Person, that, as of any date of determination, (a) the amount of the “present fair saleable value” of
the assets of the Company and the Subsidiary Borrowers, on a consolidated basis, will, as of such date, exceed the amount of all “liabilities of the Company and the Subsidiary Borrowers, on a consolidated basis, contingent or otherwise”, as of such
date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of the Company and the Subsidiary Borrowers, on a
consolidated and going-concern basis, will, as of such date, be greater than the amount that will be required to pay the liability of the Company and the Subsidiary Borrowers, on a consolidated basis, on their debts as such debts become absolute and
mature in the ordinary course of business, (c) the Company and the Subsidiary Borrowers, on a consolidated basis, will not have, as of such date, an unreasonably small amount of capital with which to conduct their business, and (d) the Company and
the Subsidiary Borrowers, on a consolidated basis, will be able to pay their debts as they mature in the ordinary course of business.
“Specified Swap Agreement” means any Swap Agreement in respect of interest rates, currency exchange rates or commodity prices entered into by any
Loan Party and any Person that is a Lender or an Affiliate of a Lender at the time such Swap Agreement is entered into.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. Unless otherwise specified, “Subsidiary” means a Subsidiary of the Company.
“Subsidiary Borrower” means (a) each Domestic Subsidiary of the Company (if any) that is listed under the caption “Subsidiary Borrowers” on the
signature pages hereof and (b) each other Domestic Subsidiary of the Company that shall become a Subsidiary Borrower pursuant to Section 2.22, in each case so long as such Subsidiary shall remain a Subsidiary Borrower hereunder.
27
“Subsidiary Borrower Designation Letter” means the Subsidiary Borrower Designation Letter entered into by the Company and a wholly-owned Domestic
Subsidiary of the Company pursuant to Section 2.22, pursuant to which such Subsidiary shall (subject to the terms and conditions of Section 2.22(b)) be designated as a Subsidiary Borrower, substantially in the form of Exhibit D-1 or any other form
approved by the Administrative Agent.
“Subsidiary Borrower Guaranteed Obligations” has the meaning set forth in Section 3.01.
“Subsidiary Borrower Obligations” means, with respect to any Subsidiary Borrower, all of the Obligations of such Subsidiary Borrower.
“Subsidiary Guarantor Guaranteed Obligations” has the meaning set forth in Section 3.01.
“Subsidiary Guarantor Obligations” means, with respect to any Subsidiary Guarantor, all of the Obligations of such Subsidiary Guarantor.
“Subsidiary Guarantors” means (a) each Subsidiary of the Company that is listed under the caption “Subsidiary Guarantors” on the signature pages
hereof and (b) each other Subsidiary of the Company that shall become a Subsidiary Guarantor pursuant to Section 6.11, in each case for so long as such Subsidiary remains or is required to remain a Subsidiary Guarantor.
“Subsidiary Joinder Agreement” means a Subsidiary Joinder Agreement substantially in the form of Exhibit C executed and delivered by a Domestic
Subsidiary that, pursuant to Section 6.11(a), is required to become a “Subsidiary Guarantor” hereunder and a “Securing Party” under the Security Agreement in favor of the Administrative Agent.
“Supported QFC” has the meaning set forth in Section
10.18.
“Survey” has the meaning has the meaning set forth in Section 6.11(b).
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving,
or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any Subsidiary
shall be a Swap Agreement.
“Syndication Agent” means the Syndication Agent identified on the cover page of this Agreement.
“Taxes” means any and all present or future income, stamp or other taxes, levies, imposts, duties, deductions, charges or withholdings (including
backup withholding) now or hereafter imposed, levied, collected or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
28
“Term Commitment” as to any Lender, the obligation of such Lender, if any, to make Term Loans to the Company in a principal amount not to exceed the
amount set forth under the heading “Term Commitment” opposite such Lender’s name on Schedule 1.01(a). On the Second Restatement Effective Date, the aggregate amount of the Term Commitments is $100,000,000.
“Term Commitment A-1” as to any Lender, the obligation
of such Lender, if any, to make Term Loans A-1 to the Company in a principal amount not to exceed the amount set forth under the heading “Term Commitment A-1” opposite such Lender’s name on Schedule 1.01(a). On the First Amendment Effective
Date, the aggregate amount of the Term Commitments A-1 is $100,000,000.
“Term Lender” means each Lender that has a Term
Commitment or that holds a Term Loan.
“Term Lender A-1” means
each Lender that has a Term Commitment A-1 or that holds a Term Loan A-1.
“Term Loan” has the meaning set forth in Section 2.01(a).
“Term Loan A-1” has the meaning set forth in Section
2.01(b).
“Term Loan Maturity Date” means May 31, 2024.
“Term Percentage” means, as to any Term Lender at any time, the percentage which such Lender’s Term Commitment then constitutes of the aggregate
Term Commitments (or, at any time after the Second Restatement Effective Date, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then
outstanding).
“Term Percentage A-1” means, as to any Term Lender A-1
at any time, the percentage which such Lender’s Term Commitment A-1 then constitutes of the aggregate Term Commitments A-1 (or, at any time after the First Amendment Effective Date, the percentage which the aggregate principal amount of such
Lender’s Term Loans A-1 then outstanding constitutes of the aggregate principal amount of the Term Loans A-1 then outstanding).
“Termination Letter” has the meaning set forth in Section 2.22(c).
“Title Company” has the meaning set forth in Section 6.11(b).
“Title Policy” has the meaning set forth in Section 6.11(b).
“Transactions” means the execution, delivery and performance by each Loan Party of this Agreement and the other Loan Documents to which such Loan
Party is a party, the borrowing of Loans hereunder and the use of proceeds thereof, and the issuance of Letters of Credit and creation of Acceptances hereunder.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
“UK Financial Institutions” means any BRRD Undertaking
(as such term is defined under the PRA Rulebook (as amended form 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.
29
“UK Resolution Authority” means the Bank of England or
any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“U.S. Special Resolution Regimes” has the meaning set forth in Section 10.18.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of
the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Title IV of ERISA.
“Working Capital Exposure” means, with respect to any Revolving Credit Lender at any time, the sum of (a) the outstanding principal amount of such
Lender’s Revolving Credit Loans the proceeds of which were designated (pursuant to the applicable Borrowing Requests) to be used for working capital purposes and (b) the LC Exposure of such Lender at such time.
“Working Capital Sublimit” means a portion of the Revolving Credit Commitments not to exceed $175,000,000200,000,000 (subject to periodic reduction as provided in Section 2.05(e)), available for (i) drawing Revolving Credit Loans the
proceeds of which are to be used for working capital purposes and (ii) the issuance of Letters of Credit.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule., and
(b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument
under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been
exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 1.02 Terms Generally. The definitions
of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to
any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement, (e) any reference to any law, rule or regulation herein shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time and (f) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
30
SECTION 1.03 Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any change occurring after the First Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other
provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Financial
Accounting Standards Board Accounting Standards Codification 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Borrower or any Subsidiary at “fair value”, as
defined therein and (ii) any treatment of Indebtedness under Accounting Standards Codification 470-20 or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such
Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding any other provision of this Agreement or the other Loan Documents
to the contrary, (x) the determination of whether a lease constitutes a capital lease (or a financing lease) or an operating lease, and whether obligations arising under a lease are required to be capitalized on the balance sheet of the lessee
thereunder and/or recognized as interest expense, shall be determined by reference to GAAP as in effect on the First Restatement Effective Date.
SECTION 1.04 Interest Rates; LIBOR Notification.
The interest rate on Eurodollar Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain
short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to
the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London
interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives
are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. In the event that the London interbank offered rate is no longer available or in certain other circumstances as set
forth in Section 2.16(b) of this Agreement, such Section 2.16(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Company, pursuant to Section 2.16, in advance of any change to the
reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any
other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the
composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.16(b), will be similar to, or produce the same value or economic equivalence of, the LIBO Rate
or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.
31
ARTICLE II
THE CREDITS
THE CREDITS
SECTION 2.01 Term Commitments and Term Commitments A-1.
(a) Subject to the
terms and conditions hereof, each Term Lender severally agrees to make a term loan (a “Term Loan”) to the Company in Dollars on the Second Restatement Effective Date in an amount equal to the Term Commitment of such Term Lender. The Term
Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Company and notified to the Administrative Agent in accordance with Section 2.02(a) and Section 2.10.
(b) Subject to the terms and conditions hereof,
each Term Lender A-1 severally agrees to make a term loan (a “Term Loan A-1”) to the Company in Dollars on the First Amendment Effective Date in an amount equal to the Term Commitment A-1 of such Term Lender A-1. The Term Loans A-1 may from time
to time be Eurodollar Loans or ABR Loans, as determined by the Company and notified to the Administrative Agent in accordance with Section 2.02(b) and Section 2.10.
SECTION 2.02 Procedure for Term Loan and Term Loan A-1 Borrowings.
(a) The Company
shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 10:00 A.M., New York City time, one Business Day prior to the anticipated Second Restatement Effective Date) requesting that
the Term Lenders make the Term Loans on the Second Restatement Effective Date and specifying the amount to be borrowed. The Term Loans made on the Second Restatement Effective Date shall initially be Eurodollar Loans. Upon receipt of such notice
the Administrative Agent shall promptly notify each Term Lender thereof. Not later than 12:00 Noon, New York City time, on the Second Restatement Effective Date each Term Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the Term Loan to be made by such Term Lender. The Administrative Agent shall credit the account of the Company on the books of such office of the Administrative Agent with the aggregate of
the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds.
(b) The Company shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 10:00 A.M., New York City time, one Business Day prior to the anticipated First Amendment Effective Date) requesting that the Term Lenders A-1 make the
Term Loans A-1 on the First Amendment Effective Date and specifying the amount to be borrowed. Upon receipt of such notice the Administrative Agent shall promptly notify each Term Lender A-1 thereof. Not later than 12:00 Noon, New York City time,
on the First Amendment Effective Date each Term Lender A-1 shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan A-1 to be made by such Term Lender A-1. The
Administrative Agent shall credit the account of the Company on the books of such office of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders A-1 in immediately available
funds.
32
SECTION 2.03 Repayment of Term Loans and Term Loans A-1.
(a) The Company
shall repay the Term Loans in quarterly principal installments in the amounts and on the dates set forth below, commencing September 29, 2019, with the balance payable on the Term Loan Maturity Date. Each such payment shall be allocated to each
Term Lender by the Administrative Agent in an amount equal to such Lender’s Term Percentage multiplied by the amounts to be paid set forth below.
|
Installment Dates
|
Principal Amount
|
|
September 29, 2019
|
$1,250,000
|
|
December 29, 2019
|
1,250,000
|
|
March 29, 2020
|
1,250,000
|
|
June 28, 2020
|
1,250,000
|
|
September 27, 2020
|
1,250,000
|
|
January 3, 2021
|
1,250,000
|
|
March 28, 2021
|
1,250,000
|
|
June 27, 2021
|
1,250,000
|
|
October 3, 2021
|
2,500,000
|
|
January 2, 2022
|
2,500,000
|
|
April 3, 2022
|
2,500,000
|
|
July 3, 2022
|
2,500,000
|
|
October 2, 2022
|
2,500,000
|
|
January 1, 2023
|
2,500,000
|
|
April 2, 2023
|
2,500,000
|
|
July 2, 2023
|
2,500,000
|
|
October 1, 2023
|
2,500,000
|
|
December 31, 2023
|
2,500,000
|
|
March 31, 2024
|
2,500,000
|
|
Term Loan Maturity Date
|
62,500,000
|
(b) The Company shall repay the Term Loans A-1 in
quarterly principal installments in the amounts and on the dates set forth below, commencing September 27, 2020, with the balance payable on the Term Loan Maturity Date. Each such payment shall be allocated to each Term Lender A-1 by the
Administrative Agent in an amount equal to such Lender’s Term Percentage A-1 multiplied by the amounts to be paid set forth below.
|
Installment Dates
|
Principal Amount
|
|
September 27, 2020
|
$1,250,000
|
|
January 3, 2021
|
1,250,000
|
|
March 28, 2021
|
1,250,000
|
|
June 27, 2021
|
1,250,000
|
|
October 3, 2021
|
2,500,000
|
|
January 2, 2022
|
2,500,000
|
|
April 3, 2022
|
2,500,000
|
|
July 3, 2022
|
2,500,000
|
|
October 2, 2022
|
2,500,000
|
|
January 1, 2023
|
2,500,000
|
|
April 2, 2023
|
2,500,000
|
|
July 2, 2023
|
2,500,000
|
|
October 1, 2023
|
2,500,000
|
|
December 31, 2023
|
2,500,000
|
|
March 31, 2024
|
2,500,000
|
|
Term Loan Maturity Date
|
67,500,000
|
33
SECTION 2.04 Revolving Credit Commitments.
Subject to the terms and conditions set forth herein, each Revolving Credit Lender agrees to make Revolving Credit Loans to any of the Borrowers from time to time during the Revolving Credit Availability Period in an aggregate principal amount that
will not result in (i) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Credit Commitment, (ii) the total Working Capital Exposures of all the Revolving Credit Lenders exceeding the Working Capital Sublimit or (iii) the
total Revolving Credit Exposures exceeding the total Revolving Credit Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Credit Loans. On the Second RestatementFirst Amendment Effective Date, all Existing Revolving Credit Loans outstanding immediately prior to the First
Amendment Effective Date shall be deemed to be repaid and such portion thereof that were ABR Loans shall be deemed to be
reborrowed as ABR Loans by the applicable Borrower and such portion thereof that were Eurodollar Loans shall be deemed to be
reborrowed as Eurodollar Loans by the applicable Borrower (it being understood that for each tranche of ExistingBorrowing of Revolving Credit Loans outstanding immediately prior to the First
Amendment Effective Date that were Eurodollar Loans, (x) the initial Interest Period for the relevant reborrowed Eurodollar Loans deemed reborrowed shall equal the remaining length of the Interest Period for such trancheoutstanding Borrowing and (y) the Adjusted LIBO Rate for the relevant reborrowed Eurodollar
Loans deemed reborrowed during such initial Interest Period shall be the Adjusted LIBO Rate for such trancheapplicable to such outstanding Borrowing immediately prior to the Second RestatementFirst Amendment Effective Date) and. The Revolving Credit Lenders shall advance funds to the Administrative Agent
no later than 12:00 Noon, New York City time, on the Second Restatement
Effective DateFirst Amendment Effective Date (collectively, the “Advance”), and the Administrative Agent shall on
the First Amendment Effective Date remit such funds to the Revolving Credit Lenders (collectively, the “Remittance”), as applicable, as shall be required to repay the Existing Revolving
Credit Loans and funded participations in Existing LC Disbursements of Existing Revolving Credit Lenders such thatsuch
that, after giving effect to such Advance and Remittance, each Revolving Credit Lender’s share of outstanding Revolving Credit Loans on the Second Restatement Effective Date is
equal to its Revolving Percentage (after giving effect to the Second Restatement Effective DateFirst Amendment).
SECTION 2.05 Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of a Borrowing by any Borrower consisting of Loans of
the same Class and Type made to such Borrower by the Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.16, each Borrowing by any Borrower shall be comprised entirely of ABR
Loans or of Eurodollar Loans as such Borrower may request in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of this Agreement.
34
(c) Minimum Amounts; Limitation on Number of Borrowings. Each Eurodollar Borrowing shall be in an aggregate
amount of $3,000,000 or a larger multiple of $500,000. Each ABR Borrowing shall be in an aggregate amount equal to $1,000,000 or a larger multiple of $100,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to
the entire unused amount of the total Revolving Credit Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.08(f). Borrowings of more than one Type may be outstanding at the same time; provided
that there shall not at any time be more than a total of ten Eurodollar Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other provision of this Agreement, no Borrower shall be
entitled to request (or to elect to convert to or continue as a Eurodollar Borrowing) (i) any Revolving Credit Eurodollar Borrowing if the Interest Period requested therefor would end after the Revolving Credit Commitment Termination Date or (ii)
any Eurodollar Borrowing of an Incremental Term Loan if the Interest Period requested therefor would end after the Incremental Term Loan Maturity Date for such Incremental Term Loan.
(e) Seasonal Reduction on Revolving Credit Commitments. For the period from January 1 through August 1 of each
fiscal year of the Company, (i) the total Revolving Credit Commitments shall be reduced to $100,000,000125,000,000 and (ii) the Working Capital Sublimit shall be reduced to $75,000,000100,000,000; provided that, solely for purposes of determining the unused Commitments in connection with the definition of Required Lenders, the foregoing reduction shall be
disregarded.
SECTION 2.06 Requests for Revolving Credit
Borrowings.
(a) Notice by the Borrowers. To request a Revolving Credit Borrowing, a Borrower shall notify the Administrative
Agent of such request by telephone (i) in the case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than 12:00
noon, New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in
a form approved by the Administrative Agent and signed by such Borrower.
(b) Content of Borrowing Requests. Each telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.05:
(i) whether the requested Revolving Credit Borrowing is to be used for working capital (thereby constituting a Borrowing under the Working Capital Sublimit);
(ii) the aggregate amount of the requested Revolving Credit Borrowing;
(iii) the date of such Revolving Credit Borrowing, which shall be a Business Day;
(iv) whether such Revolving Credit Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period therefor, which shall be a period contemplated by the definition of the term “Interest Period” and permitted under
Section 2.05(d); and
35
(vi) the location and number of the applicable Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.09.
(c) Notice by the Administrative Agent to the Lenders. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof, including whether the applicable Borrower designated the proceeds to be used for working capital purposes, and of the amount of such Lender’s
Loan to be made as part of the requested Revolving Credit Borrowing.
(d) Failure to Elect. If no election as to the Type of a Revolving Credit Borrowing is specified, then the
requested Revolving Credit Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, the requested Borrowing shall be made instead as an ABR Borrowing.
SECTION 2.07 [Reserved].
SECTION 2.08 Letters of Credit and Acceptances.
(a) General. Subject to the terms and conditions set forth herein, in addition to the Loans provided for in
Section 2.04, any Borrower may request an Issuing Lender to issue, at any time and from time to time during the Revolving Credit Availability Period, Letters of Credit denominated in Dollars and, to the extent so provided under the terms of any
such Letter of Credit, to accept drafts presented for acceptance by the beneficiary thereof in accordance with its terms (each, an “Acceptance”) for such Borrower’s account in such form as is acceptable to such Issuing Lender in its
reasonable determination. Letters of Credit issued and Acceptances created hereunder shall constitute utilization of the Commitments. On the Second Restatement Effective Date, the parties hereto agree that the Existing Letters of Credit shall be
deemed to be Letters of Credit pursuant to the terms and conditions, and entitled to the benefits, of this Agreement and the other Loan Documents, without any further action by the Borrowers or any other Person.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit) or creation of an Acceptance, a Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable
Issuing Lender and the Administrative Agent) to such Issuing Lender and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal, extension or creation) a notice requesting the issuance of a Letter of
Credit or creation of an Acceptance, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of
Credit or Acceptance is to expire (which shall comply with paragraph (d) of this Section), the amount of such Letter of Credit or Acceptance, the name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit or create such Acceptance. If requested by an Issuing Lender, such Borrower also shall submit a letter of credit application on such Issuing Lender’s standard form in connection with any
request for a Letter of Credit. The procedures (including as to the discounting of any Acceptance) related to the creation of Acceptances under Letters of Credit shall be established by the applicable Issuing Lender in their discretion. In the
event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit or acceptance application or other agreement submitted by such Borrower to, or entered into by such Borrower
with, the applicable Issuing Lender relating to any Letter of Credit or any Acceptance, the terms and conditions of this Agreement shall control.
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(c) Limitations on Amounts. A Letter of Credit shall be issued, amended, renewed or extended and an Acceptance
shall be created only if (and upon issuance, amendment, renewal or extension of each Letter of Credit and creation of each Acceptance the applicable Borrower shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal, extension or creation (i) the total LC Exposures shall not exceed the Letter of Credit Sublimit Amount, (ii) the total Working Capital Exposures of all the Revolving Credit Lenders shall not exceed the Working Capital Sublimit
and (iii) the total Revolving Credit Exposures shall not exceed the total Revolving Credit Commitments.
(d) Expiration Date. Each Letter of Credit and each Acceptance shall expire at or prior to the close of business
on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) or creation of such Acceptance and (ii) the date that is
five Business Days prior to the Revolving Credit Commitment Termination Date (unless, in the case of this clause (ii), on or prior to such date, such Letter of Credit is cash collateralized or backstopped in an amount and on terms reasonably
acceptable to the applicable Issuing Lender).
(e) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the
amount thereof) and the creation of an Acceptance by an Issuing Lender, and without any further action on the part of such Issuing Lender or the Revolving Credit Lenders, such Issuing Lender hereby grants to each Revolving Credit Lender, and each
Revolving Credit Lender hereby acquires from such Issuing Lender, a participation in such Letter of Credit and such Acceptance equal to such Revolving Credit Lender’s Revolving Percentage of the aggregate amount available to be drawn under such
Letter of Credit or payment made under such Acceptance. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit and Acceptances is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments.
In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for account of each Issuing Lender, such Revolving Credit Lender’s Revolving Percentage of each LC Disbursement made by such Issuing Lender promptly upon the request of such Issuing Lender at any time from the time of such LC
Disbursement until such LC Disbursement is reimbursed by the applicable Borrower or at any time after any reimbursement payment is required to be refunded to such Borrower for any reason. Such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each such payment shall be made in the same manner as provided in Section 2.09 with respect to Revolving Credit Loans made by such Revolving Credit Lender (and Section 2.09 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Credit Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Lender the amounts so received by it from the Revolving Credit Lenders. Promptly following receipt by the Administrative
Agent of any payment from a Borrower pursuant to paragraph (f) of this Section, the Administrative Agent shall distribute such payment to the applicable Issuing Lender or, to the extent that the Revolving Credit Lenders have made payments pursuant to
this paragraph to reimburse such Issuing Lender, then to such Revolving Credit Lenders and such Issuing Lender as their interests may appear. Any payment made by a Revolving Credit Lender pursuant to this paragraph to reimburse any Issuing Lender
for any LC Disbursement (other than the funding of ABR Revolving Credit Loans as contemplated below) shall not constitute a Loan and shall not relieve such Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If any Issuing Lender shall make any LC Disbursement in respect of a Letter of Credit or an
Acceptance, the applicable Borrower shall reimburse such Issuing Lender in respect of such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on (i) the
Business Day that such Borrower receives notice of such LC Disbursement, if such notice is received prior to 10:00 a.m., New York City time, or (ii) the Business Day immediately following the day that such Borrower receives such notice, if such
notice is not received prior to such time; provided that if such LC Disbursement is not less than $100,000, such Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.06 that such
payment be financed with an ABR Revolving Credit Borrowing in an equivalent amount and, to the extent so financed, such Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Credit Borrowing.
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If a Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Credit Lender of the applicable LC Disbursement,
the payment then due from such Borrower in respect thereof and such Revolving Credit Lender’s Revolving Percentage thereof.
(g) Obligations Absolute. Each Borrower’s obligations under this Section 2.08 shall be absolute, unconditional
and irrevocable under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that such Borrower may have or have had against each Issuing Lender, any beneficiary of a Letter of Credit or any other Person. Each
Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and each Borrower’s reimbursement obligations under Section 2.08(f) shall not be affected by, among other things, (a) any lack of validity or
enforceability of any Letter of Credit, any Acceptance or this Agreement, or any term or provision therein, (b) any draft or other document presented under a Letter of Credit or an Acceptance proving to be invalid, fraudulent or forged in any
respect or any statement therein being untrue or inaccurate in any respect, (c) any dispute between or among any Borrower and any beneficiary of any Letter of Credit or Acceptance or any other party to which such Letter of Credit or an Acceptance
may be transferred or any claims whatsoever of any Borrower against any beneficiary of such Letter of Credit or such Acceptance or any such transferee, (d) payment by any Issuing Lender under a Letter of Credit or an Acceptance against presentation
of a draft or other document that does not comply with the terms of such Letter of Credit or such Acceptance, or (e) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, each Borrower's obligations hereunder. Neither the Administrative Agent, the Lenders, nor any Issuing Lender shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or creation of any Acceptance or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or message or advice, however transmitted, in connection with any Letter of Credit or any Acceptance (including any document
required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing Lender; provided that the foregoing shall not be construed to excuse such
Issuing Lender from liability to any Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by
applicable law) suffered by each Borrower that are caused by such Issuing Lender's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit or an Acceptance comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of any Issuing Lender (as finally determined by a court of competent jurisdiction), any Issuing Lender shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a
Letter of Credit or an Acceptance, any Issuing Lender 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 or an Acceptance.
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(h) Disbursement Procedures. Each Issuing Lender shall, within a reasonable time following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit or an Acceptance. Each Issuing Lender shall promptly after such examination notify the Administrative Agent and the applicable Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Lender has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve such Borrower of its
obligation to reimburse such Issuing Lender and the Revolving Credit Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If any Issuing Lender shall make any LC Disbursement, then, unless the applicable Borrower
shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that such Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Credit Loans; provided that if such Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, then Section
2.15(c) shall apply. Interest accrued pursuant to this paragraph shall be for account of the applicable Issuing Lender, except that interest accrued on and after the date of payment by any Revolving Credit Lender pursuant to paragraph (f) of this
Section to reimburse such Issuing Lender shall be for account of such Revolving Credit Lender to the extent of such payment.
(j) Mandatory Prepayment. (A) In the event that (i) there is a determination made by any regulatory body or
instrumentality thereof (including, without limitation, any Federal Reserve Bank or any bank examiner), or there is a change in, or change in interpretation of, any applicable law, rule or regulation, in either case which changes the treatment of
Acceptances under Section 13 of the Federal Reserve Act or any other regulation or rule of the Board, and as a result any Lender is required to maintain, or determines as a matter of prudent banking practice that it is appropriate for it to
maintain, additional reserves, or (ii) any restriction is imposed on any Lender (including, without limitation, any change in acceptance limits imposed on any Lender) which would prevent such Lender from creating or participating in Acceptances or
otherwise performing its obligations in respect of Acceptances, then the Administrative Agent may, or upon the direction of the Required Lenders, the Administrative Agent shall, by notice to the Borrowers in accordance with Section 10.01, demand
prepayment of all outstanding Acceptances (if such prepayment is required), and the Issuing Lenders shall have no further obligation to create Acceptances hereunder. The Borrowers agree that it shall, within ten Business Days of its receipt of a
notice of mandatory prepayment of Acceptances, prepay all Acceptances in accordance with the provisions of Section 2.08(j)(B) hereof.
(B) Any prepayment of any Acceptances made pursuant hereto shall be made to the applicable Issuing Lender and shall be in an amount equal to the face
amount of such Acceptance minus a prepayment discount calculated by the accepting bank in accordance with its customary practice for similar Acceptances and communicated to the Borrowers.
(C) Except as otherwise provided herein, Acceptances may not be prepaid prior to maturity.
(k) Replacement of Issuing Lender. Any Issuing Lender may resign or be replaced at any time by written agreement
among the Company, the Administrative Agent, the resigned or replaced Issuing Lender and the successor Issuing Lender thereto. The Administrative Agent shall notify the Revolving Credit Lenders of any such resignation or replacement of an Issuing
Lender. At the time any such resignation or replacement shall become effective, the Company shall pay all unpaid fees accrued for account of the resigned or replaced Issuing Lender pursuant to Section 2.14(b). From and after the effective date of
any such resignation or replacement, (i) the successor Issuing Lender shall have all the rights and obligations of the resigned or replaced Issuing Lender under this Agreement with respect to Letters of Credit to be issued or Acceptances to be
created thereafter and (ii) references herein to the term “Issuing Lender” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require. After the
resignation or replacement of an Issuing Lender hereunder, the resigned or replaced Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Lender under this Agreement with respect to
Letters of Credit issued or Acceptances created by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit or to create additional Acceptances.
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(l) Cash Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Administrative Agent or the Required Revolving Credit Lenders (or, if the
maturity of the Revolving Credit Loans has been accelerated, Revolving Credit Lenders representing greater than 50% of the total LC Exposures) demanding the deposit of cash collateral pursuant to this paragraph, the Company shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to 105% of the total LC Exposures as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect
to any Loan Party described in clause (h) or (i) of Article VIII. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Loan Parties under this Agreement and the other Loan
Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the Company’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse each Issuing Lender for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrowers for the total LC Exposure at such time or, if the maturity of the Revolving Credit Loans has been accelerated (but subject to the consent of Revolving Credit Lenders representing greater than 50% of the total LC Exposures), be applied to
satisfy other obligations of the Loan Parties under this Agreement and the other Loan Documents. If the Company is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Company within three Business Days after all Events of Default have been cured or waived.
SECTION 2.09 Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 3:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the applicable Borrower by promptly crediting the amounts so received, in like funds, to an account of such Borrower designated by such Borrower in the applicable Borrowing Request; provided that ABR Revolving Credit Borrowings
made to finance the reimbursement of an LC Disbursement as provided in Section 2.08(f) shall be remitted by the Administrative Agent to the applicable Issuing Lender.
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(b) Presumption by the Administrative Agent. Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on
such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the New York Fed Bank Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in the case of such Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute
such Lender’s Loan included in such Borrowing.
SECTION 2.10 Interest Elections.
(a) Elections by the Borrowers. The Loans constituting each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the applicable Borrower may elect to convert such Borrowing to a Borrowing of a
different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar Borrowing, may elect Interest Periods, all as provided in this Section. The applicable Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans of the respective Class constituting such Borrowing, and the Loans of such Class constituting each such
portion shall be considered a separate Borrowing.
(b) Notice of Elections. To make an election pursuant to this Section, the applicable Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.06 if such Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of
such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by such Borrower.
(c) Content of Interest Election Requests. Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.05:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
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(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of the term “Interest Period” and permitted under Section 2.05(d).
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d) Notice by the Administrative Agent to the Lenders. Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If a Borrower fails to deliver a timely Interest Election Request with
respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, so long as an Event of Default is continuing
(i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.11 Termination, Reduction and Increase of
the Commitments.
(a) Scheduled Termination. Unless previously terminated, the Revolving Credit Commitments shall terminate on the
Revolving Credit Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Company may at any time terminate, or from time to time reduce, the
Revolving Credit Commitments; provided that (i) each reduction of the Revolving Credit Commitment pursuant to this Section shall be in an amount that is $1,000,000 or a larger multiple of $1,000,000 and (ii) the Company shall not terminate
or reduce the Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.13, the total Revolving Credit Exposures would exceed the total Revolving Credit Commitments. The Company
shall notify the Administrative Agent of any election to terminate or reduce the Revolving Credit Commitments under this paragraph (b) at least one Business Day prior to the effective date of such termination or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Company pursuant to this Section shall be irrevocable; provided
that a notice of such termination may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or reduction of the Revolving Credit Commitments shall be permanent.
(c) Increase of Revolving Credit Commitment.
(i) Requests for Increase. The Company may propose at any time that the Revolving Credit Commitments hereunder be
increased (each such proposed increase being a “Revolving Credit Commitment Increase”) by having an existing Revolving Credit Lender agree to increase its then existing Revolving Credit Commitment (each an “Increasing Revolving Credit
Lender”) and/or by adding as a new Revolving Credit Lender hereunder any Person reasonably satisfactory to the Administrative Agent that shall agree to provide a Revolving Credit Commitment hereunder (each an “Assuming Revolving Credit
Lender”), in each case, by notice to the Administrative Agent specifying the amount of the relevant Revolving Credit Commitment Increase, the Increasing Revolving Credit Lender(s) and/or Assuming Revolving Credit Lenders providing for such
Revolving Credit Commitment Increase and the date on which such increase is to be effective (the “Revolving Credit Commitment Increase Date”), which shall be a Business Day at least three Business Days after delivery of such notice and 30
days prior to the Revolving Credit Commitment Termination Date; provided that:
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(A) the minimum amount of each Revolving Credit Commitment Increase shall be $5,000,000 or a larger multiple of $1,000,000;
(B) the aggregate amount of all Revolving Credit Commitment Increases hereunder, together with the aggregate amount of all Incremental Term Loans, shall not exceed $75,000,000;
(C) both at the time of any such request and upon the effectiveness of any Revolving Credit Commitment Increases, no Default shall have occurred and be continuing or would result from
such proposed Revolving Credit Commitment Increase;
(D) the representations and warranties set forth in Article IV and in the other Loan Documents shall be true and correct in all material respects (without duplication of any
materiality qualifier contained therein) immediately prior to, and after giving effect to, such Revolving Credit Commitment Increase as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date);
(E) on a pro forma basis after giving effect to the incurrence of additional Revolving Loans to be borrowed on the Revolving Credit Commitment Increase Date (and to any Acquisition
consummated concurrently with such incurrence as if such Acquisition had occurred on the first day of the most recent Reference Period for which financial statements are available), the Company shall be in compliance with the financial covenants
set forth in Section 7.11 recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available; and
(F) any Revolving Credit Commitment Increase shall be on terms identical to the existing Revolving Credit Commitments and in all respects shall become a part of the existing Revolving
Credit Commitments.
Each notice by the Company under this paragraph shall be deemed to constitute a representation and warranty by the Company Parties as to the matters specified in clauses (C)
and (D) above. Notwithstanding anything herein to the contrary, no Revolving Credit Lender shall have any obligation hereunder to become an Increasing Revolving Credit Lender and any election to do so shall be in the sole discretion of each Revolving
Credit Lender.
(ii) Effectiveness of Increase. Each Revolving Credit Commitment Increase (and the increase of the Revolving
Credit Commitment of each Increasing Revolving Credit Lender and/or the new Revolving Credit Commitment of each Assuming Revolving Credit Lender, as applicable, resulting therefrom) shall become effective as of the relevant Revolving Credit
Commitment Increase Date upon receipt by the Administrative Agent, on or prior to 9:00 a.m., New York City time, on such Revolving Credit Commitment Increase Date, of (A) a certificate of a duly authorized officer of the Company stating that the
conditions with respect to such Revolving Credit Commitment Increase under this paragraph (c) have been satisfied, (B) an agreement, in form and substance satisfactory to the Company and the Administrative Agent, pursuant to which, effective as of
such Revolving Credit Commitment Increase Date, as applicable, the Revolving Credit Commitment of each such Increasing Revolving Credit Lender shall be increased or each such Assuming Revolving Credit Lender shall undertake a Revolving Credit
Commitment, in each case duly executed by such Increasing Revolving Credit Lender or Assuming Revolving Credit Lender, as the case may be, and the Company and acknowledged by the Administrative Agent and (C) such certificates or other documents
from the Borrowers reasonably requested by the Administrative Agent in connection with such Revolving Credit Commitment Increase. Upon the Administrative Agent’s receipt of a fully executed agreement from each Increasing Revolving Credit Lender
and/or Assuming Revolving Credit Lender referred to in clause (B) above, together with the certificate and other documents referred to in clauses (A) and (C) above, the Administrative Agent shall record the information contained in each such
agreement in the Register and give prompt notice of the relevant Revolving Credit Commitment Increase to the Company and the Lenders (including, if applicable, each Assuming Revolving Credit Lender). On each Revolving Credit Commitment Increase
Date, the Borrowers shall simultaneously (i) prepay in full the outstanding Revolving Credit Loans (if any) held by the Revolving Credit Lenders immediately prior to giving effect to the relevant Revolving Credit Commitment Increase, (ii) if any
Borrower shall have so requested in accordance with this Agreement, borrow new Revolving Credit Loans from all Revolving Credit Lenders (including, if applicable, any Assuming Revolving Credit Lender) such that, after giving effect thereto, the
Revolving Credit Loans are held ratably by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (after giving effect to such Revolving Credit Commitment Increase) and (iii) pay to the Revolving Credit
Lenders the amounts, if any, payable under Section 2.18; provided that notwithstanding the foregoing, at the election of the Administrative Agent in its sole discretion, any Revolving Credit Loans outstanding on such Revolving Credit
Commitment Increase Date shall be reallocated among the Revolving Credit Lenders (with Revolving Credit Lenders making any required payments to each other) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any
revised pro rata shares of such Lenders arising from any nonratable increase in the Revolving Credit Commitments under this Section 2.11(c). Upon each such Revolving Credit Commitment Increase, the participation interests of the Revolving Credit
Lenders in the then outstanding Letters of Credit, and Acceptances shall automatically be adjusted to reflect, and each Revolving Credit Lender (including, if applicable, each Assuming Revolving Credit Lender) shall have a participation in each
such Letter of Credit and Acceptance equal to, the Revolving Credit Lenders’ respective Revolving Percentage of the aggregate amount available to be drawn under such Letter of Credit or such Acceptance, as applicable, after giving effect to such
increase.
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(d) Incremental Term Loans.
(i) Requests for Incremental Term Loans. The Company and any one or more Lenders or other lenders arranged by the
Company and reasonably acceptable to the Administrative Agent (an “Incremental Term Loan Lender”) may from time to time agree that such Incremental Term Loan Lenders shall make one or more tranches of term loans available to the Company
(each an “Incremental Term Loan”). Any such Incremental Term Loan shall be made available (the date such Incremental Term Loan is made available, an “Incremental Term Loan Effective Date”) to the Company on terms and pursuant to a
supplement to this Agreement in form and substance substantially consistent with the terms related to the Term Loans and Term Loans A-1
in this Agreement, or otherwise reasonably satisfactory to the Administration Agent and the Company (an “Incremental Term Loan Supplement”) executed and delivered by the Company, the applicable Incremental Term Loan Lenders and the
Administrative Agent (which Incremental Term Loan Supplement may include such amendments to this Agreement as shall be required in the reasonable judgment of the Administrative Agent to effect the intent of this Section); provided that:
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(A) the minimum amount of each Incremental Term Loan shall be $5,000,000 or a larger multiple of $1,000,000;
(B) the aggregate amount of all Incremental Term Loans hereunder, together with the aggregate amount of Revolving Credit Commitment Increases made under Section 2.11(c), shall not
exceed $75,000,000;
(C) both at the time of any such request and upon the effectiveness of any Incremental Term Loans, no Default shall have occurred and be continuing or would result from such proposed
Incremental Term Loan;
(D) the representations and warranties set forth in Article IV and in the other Loan Documents shall be true and correct in all material respects immediately prior to, and after
giving effect to, such Incremental Term Loan on and as of the Incremental Term Loan Effective Date as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such
specific date);
(E) on a pro forma basis after giving effect to the incurrence of any such Incremental Term Loans (and to any Acquisition consummated concurrently with such incurrence as if such
Acquisition had occurred on the first day of the most recent Reference Period for which financial statements are available), the Company shall be in compliance with the financial covenants set forth in Section 7.11 recomputed as of the last day of
the most recently ended fiscal quarter of the Company for which financial statements are available;
(F) Incremental Term Loans may, among other things, be subject to the mandatory prepayment obligations set forth in Section 2.13(c); and
(G) the interest rates, maturity and amortization schedules applicable to any Incremental Term Loan shall be determined by the Company,
the Administrative Agent and the Incremental Term Loan Lenders thereunder; provided that (i) the
Incremental Term Loans shall not mature earlier than the date that is six months after the Term Loan Maturity Date and (ii) in the event that the Applicable Rate for any Incremental Term Loan exceeds the Applicable Rate for the Term Loans or the Term Loans A-1 by more than 50 basis points, then the Applicable Rate for the Term Loans or the Term Loans A-1, as applicable, shall be increased to be the same as the Applicable Rate for such Incremental Term Loan minus 50 basis points;
provided, further, that in determining the Applicable Rates applicable to the Term Loans, the Term Loans A-1 and the
Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Company to the Lenders of the Term Loans, the Term Loans A-1 or the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life
to maturity) and (y) if the LIBOR or ABR “floor” for the Incremental Term Loans is greater than the LIBOR or ABR “floor,” respectively, for the Term Loans or Term Loans A-1, the difference between such floor for the Incremental Term Loans and the Term Loans or Term Loans A-1, as applicable, shall be equated to an increase in the Applicable Rate for purposes of this clause (G).
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Notwithstanding anything herein to the contrary, no Lender shall have any obligation hereunder to become an Incremental Term Loan Lender and any election to do so shall be in
the sole discretion of each Lender.
(ii) Effectiveness of Increase. On each Incremental Term Loan Effective Date, the Company shall deliver to the
Administrative Agent (A) a certificate of a duly authorized officer of the Company stating that the conditions with respect to such Incremental Term Loan under this paragraph (d) have been satisfied, (B) an executed Incremental Term Loan Supplement
and (C) such certificates or other documents from the Company reasonably requested by the Administrative Agent in connection with such Incremental Term Loan. Upon the Administrative Agent’s receipt of a fully executed Incremental Term Loan
Supplement, together with the certificate and other documents referred to in clauses (A) and (C) above, the Administrative Agent shall record the information contained in each such agreement in the Register and give prompt notice of the relevant
Incremental Term Loan to the Company and the Lenders.
SECTION 2.12 Repayment of Revolving Credit Loans;
Evidence of Debt.
(a) Repayment. Each Borrower hereby unconditionally promises to pay to the Administrative Agent for account of
each Revolving Credit Lender the full outstanding principal amount of such Revolving Credit Lender’s Revolving Credit Loans made to such Borrower, and each such Revolving Credit Loan shall mature, on the Revolving Credit Commitment Termination
Date.
(b) Maintenance of Records by Lenders. Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) Maintenance of Records by the Administrative Agent. The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for account of the Lenders and each Lender’s share thereof.
(d) Effect of Entries. The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the applicable Borrower to repay the Loans made to it in accordance with the terms of this Agreement.
(e) Promissory Notes. Any Lender may request that Loans made by it to any Borrower be evidenced by a promissory
note of such Borrower. In such event, such Borrower, at its own expense, shall prepare, execute and deliver to such Lender a promissory note(s) payable to such Lender or its registered assigns and substantially in the form of Exhibit B-1or, B-2 or B-3, as appropriate, and such note(s) shall be evidence of such Loans (and all amounts payable in respect thereof). Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more promissory notes in such form payable to the order of such Lender or its registered assigns.
SECTION 2.13 Prepayment of Loans.
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(a) Optional Prepayments. The Borrowers shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to the requirements of paragraph (d) of this Section.
(b) Clean-Down. For at least 30 consecutive days during each fiscal year and for at least ten consecutive days
during the period commencing on December 1 through and including January 31 of each fiscal year, no Revolving Credit Loan borrowed under the Working Capital Sublimit shall be outstanding.
(c) Mandatory Prepayments.
(i) If any Indebtedness shall be incurred by the Company or any of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.01), an amount equal to 100% of
the Net Cash Proceeds thereof shall be applied within five Business Days of the receipt of such Net Cash Proceeds toward the prepayment of the Term Loans and the Term Loans A-1 as set forth in Section 2.13(c)(iii).
(ii) If the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect
thereof within five Business Days of the receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied within ten Business Day following receipt thereof toward the prepayment of the Term Loans and the Term Loans A-1; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount
equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Term Loans A-1. For the avoidance of doubt, the parties hereto acknowledge and agree that the Net Cash Proceeds from the Company’s sale of Xxxxxx May Confections Brands, Inc. (including its subsidiaries, Xxxxxx
May Confections, Inc. and Xxxxx London Candies, Inc.), which would otherwise have been required to be applied to make a prepayment of the Existing Term Loans under the Existing Credit Agreement unless reinvested as provided therein, shall not be
required to be applied to prepay the Term Loans and such Net Cash Proceeds shall be deemed to have been reinvested in accordance with the provisions hereof.
(iii) Amounts to be applied in connection with prepayments shall be applied to the prepayment of the Term Loans and the Term Loans A-1 in accordance with Section 2.20. The application of any prepayment to a particular Class pursuant to this Section 2.13(c) shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.13(c) shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid. Each prepayment of the Term Loans and the Term Loans A-1
in accordance with this Section 2.13(c) shall be made on a pro rata basis between the Term Loans and the Term Loans A-1 and, in each
case, shall be applied to installments thereof in the inverse order of maturity.
(d) Notices, Etc. The applicable Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing,
not later than 12:00 noon, New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid
and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Credit
Commitments as contemplated by Section 2.11, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.11. Promptly following receipt of any such notice relating to a Borrowing of any
Class, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section
2.05, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing of any Class shall be applied ratably to the Loans of such Class included in such Borrowing and (unless the Company shall
otherwise direct) shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.15.
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SECTION 2.14 Fees.
(a) Commitment Fee. The Company agrees to pay to the Administrative Agent for account of each Revolving Credit
Lender a commitment fee, which shall accrue at the Applicable Rate on the average daily unused amount of such Lender’s Revolving Credit Commitment during the period from and including the Second Restatement Effective Date to but excluding the
earlier of the date the Revolving Credit Commitments terminate and the Revolving Credit Commitment Termination Date. Accrued commitment fees shall be payable on each Quarterly Date and on the earlier of the date the Revolving Credit Commitments
terminate and the Revolving Credit Commitment Termination Date, commencing on the first such date to occur after the Second Restatement Effective Date. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, the Revolving Credit Commitment of a Revolving Credit Lender shall be deemed to be used to the extent of the
outstanding Revolving Credit Loans and LC Exposure of such Revolving Credit Lender.
(b) Letter of Credit Fees. The Company agrees to pay (i) to the Administrative Agent for account of each
Revolving Credit Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate on Eurodollar Revolving Credit Loans on the average daily amount
of such Revolving Credit Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Second Restatement Effective Date to but excluding the later of the date the
Revolving Credit Commitments terminate and the date on which there ceases to be any LC Exposure, and (ii) to the applicable Issuing Lender a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the total
LC Exposures in respect of Letters of Credit issued by such Issuing Lender (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Second Restatement Effective Date to but excluding the
later of the date the Revolving Credit Commitments terminate and the date on which there ceases to be any LC Exposure in respect of Letters of Credit issued by such Issuing Lender, as well as such Issuing Lender’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of each of March, June, September and December shall be payable
on the third Business Day following such last day, commencing on the first such date to occur after the Second Restatement Effective Date; provided that all such fees shall be payable on the date on which the Revolving Credit Commitments
terminate and any such fees accruing after the date on which the Revolving Credit Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Lenders pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
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(c) Administrative Agent Fees. The Company agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the Company and the Administrative Agent.
(d) Acceptance Fees. The Company agrees to pay to the applicable Issuing Lender a fee (the “Acceptance Fee”)
in advance, at a rate per annum equal to the Applicable Rate, on the date of creation of each Acceptance. All Acceptance Fees shall be calculated on the face amount of the Acceptance issued and computed on the basis of the actual number of days in
the term thereof and a year of 365 days. The Acceptance Fee shall be in addition to any other fees payable to each Issuing Lender in connection with the creation, issuance or discounting of such Acceptance. The discount rate for Acceptance Fees
shall be calculated under terms customary to the practice of the applicable Issuing Lender and shall be based upon a year of 365 days and the term of such Acceptance.
(e) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the applicable Issuing Lender, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under
any circumstances.
SECTION 2.15 Interest.
(a) ABR Loans. The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus
the Applicable Rate.
(b) Eurodollar Loans. The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrowers hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the
case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of the Revolving Credit Loans, upon termination of the Revolving Credit Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Credit Loan prior to the end of the Revolving Credit Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the
date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
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SECTION 2.16 Alternate Rate of Interest. (a)
If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBO Rate or the Adjusted LIBO Rate, as applicable, for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that the LIBO Rate or the Adjusted LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining their respective Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Borrowing to, or the continuation of any
Borrowing as, a Eurodollar Borrowing shall be ineffective and such Borrowing (unless prepaid) shall be continued as, or converted (on the last day of the then-current Interest Period) to, an ABR Borrowing and (ii) if any Borrowing Request requests a
Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
(b) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set
forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public
statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement
identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the
administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate
or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for determining interest rates for loans, then the
Administrative Agent and the Company shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the
United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes
shall not include a reduction of the Applicable Rate); provided that, if such alternate rate of interest as so determined would be less than zero (or in the case of the Term Loans A-1, less than 0.75%), such rate shall be deemed to be zero (or in the case of the Term Loans A-1, deemed to be 0.75%) for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 10.02, such amendment shall become effective without any further action or
consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders
stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this
Section 2.16(b), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of
any Borrowing as, a Eurodollar Borrowing shall be ineffective and such Borrowing (unless prepaid) shall be continued as, or converted (on the last day of the then-current Interest Period) to, an ABR Borrowing and (y) if any Borrowing Request requests
a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
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SECTION 2.17 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) subject any Lender or the Issuing Lender to any Taxes (other than (A) Indemnified Taxes indemnifiable under Section 2.19 and (B) Excluded Taxes) on its loans, loan principal,
letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) impose, modify or deem applicable any reserve, special deposit, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended
by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Lender; or
(iii) impose on any Lender or any Issuing Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or any Acceptance or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such Issuing Lender of participating in, issuing, maintaining or creating any Letter of Credit or any Acceptance or to reduce the amount of any sum received or receivable by
such Lender or such Issuing Lender hereunder (whether of principal, interest or otherwise), then the applicable Borrower will pay to such Lender or such Issuing Lender, as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Adequacy, Liquidity Requirements. If any Lender or any Issuing Lender determines that any Change in
Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Lender’s capital or on the capital of such Lender’s or such Issuing Lender’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit or Acceptances held by, such Lender, or the Letters of Credit issued or Acceptances created by such Issuing Lender, to a level below that which
such Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Lender’s policies and the policies of such Lender’s
or such Issuing Lender’s holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or such Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or
such Issuing Lender or such Lender’s or such Issuing Lender’s holding company for any such reduction suffered.
(c) Requests, Rules, Guidelines, etc . Notwithstanding anything herein to the contrary, (i) all requests, rules,
guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case
pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each
case be deemed to be a change in law, regardless of the date enacted, adopted, issued or implemented.
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(d) Certificates from Lenders. A certificate of a Lender or an Issuing Lender setting forth the amount or
amounts, necessary to compensate such Lender or such Issuing Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the applicable Borrower and the Company and shall be
conclusive absent manifest error. The applicable Borrower shall pay such Lender or such Issuing Lender, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(e) Delay in Requests. Failure or delay on the part of any Lender or any Issuing Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Lender’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender or an Issuing Lender pursuant to
this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or such Issuing Lender, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or such Issuing Lender’s intention to claim compensation therefor; provided further that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.18 Break Funding Payments. In the
event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section
2.11(b) and is revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 2.22, then, in any such
event, the applicable Borrower shall compensate each Lender for the loss (other than any loss of anticipated profits), cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss (other than any loss of anticipated
profits), cost or expense to any Lender shall be deemed to include an amount reasonably determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event
not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.19 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Loan Parties hereunder
or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if any Indemnified Taxes or Other Taxes are required to be withheld from any amounts payable to
the Administrative Agent, any Lender or Issuing Lender, as determined in good faith by the Company or the Administrative Agent, as applicable (the “Applicable Withholding Agent”), then (i) the sum payable by the applicable Loan Party to the
Administrative Agent, Lender or Issuing Lender (as the case may be) shall be increased as necessary so that after all required deductions (including deductions applicable to additional sums payable under this Section) have been made by the
Applicable Withholding Agent, the Administrative Agent, Lender or Issuing Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Applicable Withholding Agent shall make such
deduction and (iii) such amounts shall be paid by the Applicable Withholding Agent to the relevant Governmental Authority in accordance with applicable law.
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(b) Payment of Other Taxes by the Borrowers. In addition, each Loan Party shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Loan Parties. The Loan Parties shall jointly and severally indemnify the
Administrative Agent, each Lender and each Issuing Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or such Issuing Lender, as the case
may be, on or with respect to any payment by or on account of any obligation of such Loan Party hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to a Borrower by a Lender (with a copy to the Administrative Agent) or an Issuing Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive
absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Taxes, imposed with respect to a payment
under any Loan Document, by a Borrower to a Governmental Authority, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Tax Forms. Any Lender or Issuing Lender that is entitled to an exemption from or reduction of any applicable
withholding Tax with respect to payments hereunder or under any other Loan Document shall deliver to the applicable Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by such Borrower or the Administrative
Agent, such properly completed and executed documentation prescribed by applicable law or as reasonably requested by the applicable Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced
rate of withholding. In addition, any Lender or Issuing Lender, if requested by the applicable Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by such Borrower or
the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whether or not such Lender or Issuing Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the
contrary in the preceding two sentences, in the case of any withholding tax other than the U.S. federal withholding tax, the completion, execution and submission of such forms shall not be required if in the Foreign Lender’s reasonable judgment
such completion, execution or submission would subject such Foreign Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Foreign Lender.
Without limiting the generality of the foregoing, in the event that any Borrower is a United States person under Section 7701(a)(30) of the Code, any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement, and after the occurrence of a change in the Lender’s circumstances which require a change in the most recent form or certification previously delivered by it (and from time to time thereafter upon the request of such
Borrower or the Administrative Agent), whichever of the following is applicable:
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(i) duly completed copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United States of America is a
party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the Form of
Exhibit E to the effect that (A) such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) such Foreign Lender is not a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the
Code, (C) such Foreign Lender is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (D) no payments in connection with any Loan Document are effectively connected with the United States trade or business
conducted by such Lender (a “U.S. Tax Compliance Certificate”) and (y) duly completed copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E,
(iv) to the extent a Foreign Lender is not the beneficial owner (for example, where the Foreign Lender is a partnership or participating Lender granting a typical participation), an
Internal Revenue Service Form W-8IMY, accompanied by a Form W-8ECI, W-8BEN, W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign
Lender is a partnership (and not a participating Lender) and one or more beneficial owners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each
such beneficial owner, or
(v) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit a Borrower or the Administrative Agent to determine the withholding or deduction required to be made, if any.
Each Lender and Issuing Lender agrees that if any form or certification it previously delivered by it expires or becomes obsolete or inaccurate in any respect, it shall
update such form or certification or promptly notify the applicable Borrower and the Administrative Agent in writing of its legal inability to do so.
Any Lender or Issuing Lender that is a United States person under Section 7701(a)(30) of the Code, to the extent it may lawfully do so, shall deliver to
the Company and the Administrative Agent on or prior to the date on which such Lender or Issuing Lender becomes a Lender or Issuing Lender, as applicable, under this Agreement, on or prior to the date on which any such form or certification expires
or becomes obsolete, and after the occurrence of a change in the Lender or Issuing Lender’s circumstances which require a change in the most recent form or certification previously delivered by it (and from time to time thereafter upon the request of
the Company or the Administrative Agent), duly completed copies of Internal Revenue Service Form W-9 (or any successor form) certifying that such Lender or Issuing Lender is entitled to an exemption from U.S. backup withholding tax.
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If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1471(b) of the Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times prescribed by
law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s
obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph, “FATCA” shall include any amendments made to FATCA after the Second Restatement Effective Date.
Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided
by such Lender to the Administrative Agent pursuant to this Section 2.19(e).
(f) Each Lender shall indemnify the Administrative Agent, within 10 days after demand therefor, for (i) the full amount of any Taxes attributable to such Lender (but only to the extent that any Loan Party
has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of the Loan Parties to do so) and (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.4(c) relating
to the maintenance of a Participant Register, in either case, that are payable or paid by the Administrative Agent and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative
Agent under this paragraph (f).
(g) Refunds. If the Administrative Agent, a Lender or an Issuing Lender determines, in its sole discretion, that
it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Borrower or with respect to which a Borrower has paid additional amounts pursuant to this Section, it shall pay over such refund to such
Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender or such Issuing Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Borrower, upon the request of the
Administrative Agent or such Lender or such Issuing Lender, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such
Lender or such Issuing Lender in the event the Administrative Agent or such Lender or such Issuing Lender is required to repay such refund to such Governmental Authority. This Section shall not be construed to require the Administrative Agent, any
Lender or any Issuing Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Company, any of its Subsidiaries or any other Person.
(h) Survival. The agreements in this Section shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
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SECTION 2.20 Payments Generally; Pro Rata
Treatment; Sharing of Set offs.
(a) Payments by the Borrowers. Each Borrower shall make each payment required to be made by it hereunder (whether
of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.17, 2.18 or 2.19, or otherwise) or under any other Loan Document (except as otherwise expressly provided therein) prior to 12:00 noon, New York
City time, on the date when due, in immediately available funds, without set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at an account maintained with the Administrative Agent as notified to the Company and the Lenders, except as
otherwise expressly provided in the relevant Loan Document and except payments to be made directly to the Issuing Lenders as expressly provided herein and except that payments pursuant to Sections 2.17, 2.18, 2.19 and 10.03, which shall be made
directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All
payments hereunder and under any other Loan Document shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each Borrowing of a particular Class
shall be made from the applicable Lenders, pro rata according to the amounts of the respective Commitments of such Class and shall be allocated pro rata among the applicable Lenders according to the amounts of their respective Commitments of such
Class (in the case of the making of Loans) or their respective Loans of such Class that are to be included in such Borrowing (in the case of conversions and continuations of Loans), (ii) each payment of commitment fees under Section 2.14 shall be
made for account of the Revolving Credit Lenders, and each termination or reduction of the amount of the Revolving Credit Commitments under Section 2.11 shall be applied to the Revolving Credit Commitments, pro rata according to the respective
Revolving Credit Commitments of the Revolving Credit Lenders; (iii) each payment or prepayment of principal of Loans of any Class by any Borrower shall be made for account of the applicable Lenders pro rata according to the respective unpaid
principal amounts of the Loans of such Class held by such Lenders; and (iv) each payment of interest on Loans of any Class by any Borrower shall be made for account of the applicable Lenders pro rata according to the amounts of interest on such
Loans of such Class then due and payable to such Lenders. Amounts prepaid on account of the Term Loans or the Term Loans A-1
may not be reborrowed.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of set off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and
participations in LC Disbursements, as applicable, and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans
and participations in LC Disbursements, as applicable, of other applicable Lenders to the extent necessary so that the benefit of all such payments shall be shared by the applicable Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations in LC Disbursements, as applicable; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrowers
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee
or participant, other than to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of set off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
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(e) Presumptions of Payment. Unless the Administrative Agent shall have received notice from any Borrower prior
to the date on which any payment is due to the Administrative Agent for account of the Lenders or the Issuing Lenders hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Lenders, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then
each of the applicable Lenders or the applicable Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Lender with interest thereon,
for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the New York Fed Bank Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(f) Certain Deductions by the Administrative Agent. If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.08(e), 2.09(b) or 2.20(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for account of such
Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.21 Mitigation Obligations; Replacement of
Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 2.17, or if a
Borrower is required to pay any additional amount pursuant to Section 2.19, then such Lender shall, if requested by the Company, use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.17 or 2.19, as the case
may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment. Nothing in this Section shall affect or postpone any of the obligations of the Borrowers or the rights of any Lender pursuant to Section 2.17 or 2.19.
(b) Replacement of Lenders. If any Lender requests compensation under Section 2.17, if a Borrower is required to
pay any additional amount pursuant to Section 2.19, if any Lender defaults in its obligation to fund Loans hereunder or if any Lender does not consent to any proposed amendment, supplement, modification, consent or waiver of any provision of this
Agreement or any other Loan Document that requires the consent of each of the Lenders or each of the Lenders affected thereby (so long as the consent of the Required Lenders has been obtained), then the Company may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender or any Lender that becomes a Defaulting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.04),
all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received
the prior written consent of the Administrative Agent and (if a Revolving Credit Commitment is being assigned) each Issuing Lender, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the applicable Borrower (in the case of all other amounts), (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.17 or payments required to be made pursuant to Section 2.19, such assignment
will result in a reduction in such compensation or payments and (iv) until such time as such assignment shall be consummated, the Borrowers shall pay all additional amounts (if any) required pursuant to Section 2.17 or 2.19. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply. Each party hereto agrees
that (i) any assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee, and (ii) the Lender required to make such assignment need not
be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such
assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided that any such documents shall be without recourse to or warranty by the parties thereto.
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SECTION 2.22 Designation of Subsidiary Borrowers.
(a) Designation. Subject to the terms and conditions of this Section (including paragraph (b) of this Section),
the Company may, at any time or from time to time upon not less than five Business Days’ notice to the Administrative Agent (or such other period which is acceptable to the Administrative Agent), request that a wholly-owned Domestic Subsidiary
specified in such notice become a party to this Agreement as a Subsidiary Borrower; provided that each such designation shall be subject to the prior approval of the Administrative Agent (which approval in each case shall not be
unreasonably withheld). The Administrative Agent shall upon receipt of such notice from the Company promptly notify each Revolving Credit Lender and the Issuing Lenders of the Company’s designation. Upon such approval and the satisfaction of the
conditions specified in paragraph (b) of this Section, the Administrative Agent shall accept the relevant Subsidiary Borrower Designation Letter whereupon the applicable Subsidiary shall become a party to this Agreement as a Subsidiary Borrower and
entitled to borrow Revolving Credit Loans and to have Letters of Credit issued and Acceptances created for its own account hereunder.
(b) Conditions Precedent to Effectiveness of Designation. The effectiveness of a designation by the Company of
any Subsidiary as a Borrower hereunder shall be subject to the following conditions precedent: (i) receipt by the Administrative Agent of each of the following documents (each of which shall be in satisfactory to the Administrative Agent in form
and substance) (x) a Subsidiary Borrower Designation Letter, duly completed and executed by the Company and the applicable Subsidiary, delivered to the Administrative Agent at least five Business Days before the date on which such Subsidiary is
proposed to become a Borrower; and (y) such opinions, documents and certificates as the Administrative Agent may reasonably request (including certified copies of the organizational documents of such Subsidiary and of resolutions of its board of
directors authorizing such Subsidiary becoming a Borrower hereunder, and of all documents evidencing all other necessary corporate or other action required with respect to such Subsidiary becoming party to this Agreement) that are consistent with
conditions for the Loan Parties set forth in Section 5.01; and (ii) receipt by the Administrative Agent, each Revolving Credit Lender and each Issuing Lender of all documentation and other information with respect to the applicable Subsidiary that
is reasonably requested by the Administrative Agent, such Revolving Credit Lender or such Issuing Lender, as applicable, and that the Administrative Agent, such Revolving Credit Lender or such Issuing Lender, as applicable, reasonably determines is
required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation.
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(c) Termination of Subsidiary Borrower. The Company may, at any time at which no Revolving Credit Loans or any
other amounts hereunder or under any other Loan Documents shall be outstanding to, nor any Letters of Credit or any Acceptances shall be outstanding for the account of, any Subsidiary Borrower, terminate such Subsidiary Borrower as a Borrower
hereunder by delivering an executed notice thereof (each a “Termination Letter”), substantially in the form of Exhibit D-2, to the Administrative Agent; provided that if the Company notifies the Administrative Agent that a Subsidiary
Borrower ceases to be a Subsidiary of the Company in a transaction not prohibited by this Agreement, a Termination Letter is deemed delivered by the Company and received by the Administrative Agent effective as of the date that such Subsidiary
Borrower ceases to be a Subsidiary of the Company. Any Termination Letter or notice, as applicable, furnished hereunder shall be effective upon receipt thereof by the Administrative Agent (which shall promptly following receipt of such Termination
Letter or notice, as applicable, so notify the Revolving Credit Lenders and the Issuing Lenders), whereupon all commitments of the Revolving Credit Lenders to make Revolving Credit Loans to, and all obligations of the Issuing Lenders to issue
Letters of Credit or create Acceptances for the account of, such Subsidiary Borrower and all of rights of such Subsidiary Borrower hereunder shall terminate and such Subsidiary Borrower shall cease to be a Borrower hereunder. Notwithstanding the
foregoing, the delivery (or deemed delivery) of a Termination Letter with respect to any Subsidiary Borrower shall not terminate (i) any obligation of such Subsidiary Borrower that remains unpaid at the time of such delivery (or deemed delivery) or
(ii) the obligations of the Company under Article III with respect to any such unpaid obligations. The parties hereto acknowledge Xxxxxx May Confections, Inc. and Xxxxx London Candies, Inc. are terminated as Subsidiary Borrowers hereunder and that
a Termination Letter in accordance with this Section 2.22(c) is deemed delivered by the Company and received by the Administrative Agent effective as of the date that each of Xxxxxx May Confections, Inc. and Xxxxx London Candies, Inc. ceased to be
a Subsidiary of the Company in accordance with the terms of this Agreement.
SECTION 2.23 Defaulting Lenders.
Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees set forth in Section 2.14(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender;
(b) to the extent permitted by applicable law, (i) any voluntary prepayment of Revolving Credit Loans shall, if the Company so directs at the time of making such voluntary prepayment, be applied to the
Revolving Credit Loans of other Lenders as if such Defaulting Lender had no Revolving Credit Loans outstanding and the Revolving Credit Exposure of such Defaulting Lender were zero, and (ii) any mandatory prepayment of the Revolving Credit Loans
shall, if the Company so directs at the time of making such mandatory prepayment, be applied to the Revolving Credit Loans of other Lenders, but not to the Revolving Credit Loans of such Defaulting Lender, it being understood and agreed that the
Company shall be entitled to retain any portion of any mandatory prepayment of the Revolving Credit Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
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(c) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment or waiver pursuant to Section 10.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently
than other affected Lenders shall require the consent of such Defaulting Lender;
(d) if any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such LC Exposure shall be reallocated among the Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but, in any
case, only to the extent (x) the sum of the Revolving Credit Exposures of all Lenders that are not Defaulting Lenders plus such Defaulting Lender’s LC Exposure does not exceed the total of the Commitments of all Lenders that are not
Defaulting Lenders and (z) the conditions set forth in Section 5.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative
Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.08(l) for so long as such LC Exposure is
outstanding;
(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to this paragraph (d), the Borrowers shall not be required to pay any fees to such
Defaulting Lender pursuant to Section 2.14(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this paragraph (d), then the fees payable to the Lenders pursuant to Section 2.14(a) and Section
2.14(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Percentages; or
(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this paragraph (d), then, without prejudice to any rights or remedies of the
Issuing Lenders or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and fees
payable in connection with any Letters of Credit or Acceptances under Sections 2.14(b) and 2.14(d) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lenders until such LC Exposure is cash collateralized
and/or reallocated; and
(vi) subject to Section 10.16,
no reallocation pursuant to this paragraph (d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a
non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation;
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(e) so long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit or create any Acceptance, unless it is satisfied that the related
exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with paragraph (d) of this Section, and participating interests in any such newly issued or
increased Letter of Credit or Acceptance shall be allocated among non-Defaulting Lenders in a manner consistent with paragraph (d)(i) of this Section (and Defaulting Lenders shall not participate therein).; and
(f) In the event that each of the Administrative Agent, the Borrowers and the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting
Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall
determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Percentage.
SECTION 2.24 XXXX Event. Notwithstanding
anything to the contrary herein, the making, increasing, extension or renewal of any Loans pursuant to this Agreement shall be subject to flood insurance due diligence and flood insurance compliance in accordance with Section 6.11(b)(ix) hereto and
shall otherwise be reasonably satisfactory to the Administrative Agent, the Lenders and the Issuing Lenders.
ARTICLE III
GUARANTEE
GUARANTEE
SECTION 3.01 The Guarantee. (a) The Company
hereby guarantees to each Guaranteed Party the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the (i) Subsidiary Borrower Obligations, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the “Subsidiary Borrower Guaranteed Obligations”) and (ii) Subsidiary Guarantor Obligations, in each case strictly in accordance with the terms thereof (such obligations being herein collectively
called the “Subsidiary Guarantor Guaranteed Obligations”). The Company hereby further agrees that if any Subsidiary Borrower or Subsidiary Guarantor shall fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of such Subsidiary Borrower Guaranteed Obligations or Subsidiary Guarantor Guaranteed Obligations, as applicable, the Company will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of such Subsidiary Borrower Guaranteed Obligations or Subsidiary Guarantor Guaranteed Obligations, as applicable, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
(b) Each Subsidiary Guarantor hereby jointly and severally guarantees to each Guaranteed Party the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Borrower Obligations (other than such obligations, if any, of such Subsidiary Guarantor), in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Borrower
Guaranteed Obligations”). The Subsidiary Guarantors hereby further jointly and severally agree that if any such Borrower shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of such Borrower
Guaranteed Obligations, the Subsidiary Guarantors will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of such Borrower Guaranteed Obligations, the same will
be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
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SECTION 3.02 Obligations Unconditional. The
obligations of the Guarantors under Section 3.01 are absolute and unconditional, and (in the case of the Subsidiary Guarantors) joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of
the other Loan Parties under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of their respective Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section that the
obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantors hereunder, which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of their respective Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement or any other agreement or instrument referred to herein shall be done or omitted;
(iii) the maturity of any of their respective Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented or amended in any
respect, or any right under this Agreement or any other agreement or instrument referred to herein shall be waived or any other guarantee of any of their respective Guaranteed Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the Administrative Agent, any Lender or Lenders or any other Guaranteed Party as security for any of the Guaranteed
Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent, any
Lender or any other Guaranteed Party exhaust any right, power or remedy or proceed against the Company under this Agreement or any other agreement or instrument referred to herein, or against any other Person under any other guarantee of, or security
for, any of their respective Guaranteed Obligations.
SECTION 3.03 Reinstatement. The obligations of
each Guarantor under this Article shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the other Borrowers in respect of the relevant Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of such Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent, each Lender and each other
Guaranteed Party on demand for all reasonable costs and expenses (including fees of counsel) incurred by the Administrative Agent, such Lender or such other Guaranteed Party in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
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SECTION 3.04 Subrogation. Each Guarantor
hereby agrees that, until the payment and satisfaction in full of all Guaranteed Obligations and the expiration and termination of the Commitments of the Lenders under this Agreement, it shall not exercise any right or remedy arising by reason of
any performance by it of its guarantee in Section 3.01, whether by subrogation or otherwise, against the Company or any other guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
SECTION 3.05 Remedies. Each Guarantor agrees
that, as between such Guarantor and the Lenders, the obligations of the Borrowers under this Agreement may be declared to be forthwith due and payable as provided in Article VIII (and shall be deemed to have become automatically due and payable in
the circumstances provided in Article VIII) for purposes of Section 3.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Borrower
and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Borrower) shall forthwith become due and payable by such Guarantor
for purposes of Section 3.01.
SECTION 3.06 Instrument for the Payment of Money.
Each Guarantor hereby acknowledges that the guarantee in this Article constitutes an instrument for the payment of money, and consents and agrees that any Guaranteed Party, at its sole option, in the event of a dispute by such Guarantor in the
payment of any moneys due hereunder, shall have the right to proceed by motion for summary judgment in lieu of complaint pursuant to N.Y. Civ. Prac. L&R § 3213.
SECTION 3.07 Continuing Guarantee. The
guarantee in this Article is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising.
SECTION 3.08 Rights of Contribution. The
Subsidiary Guarantors hereby agree, as between themselves, that if any Subsidiary Guarantor shall become an Excess Funding Guarantor (as defined below) by reason of the payment by such Subsidiary Guarantor of any Guaranteed Obligations, then each
other Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the next sentence), pay to such Excess Funding Guarantor an amount equal to such Subsidiary Guarantor’s Pro Rata Share (as defined below and determined,
for this purpose, without reference to the properties, debts and liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
any Excess Funding Guarantor under this Section 3.08 shall be subordinate and subject in right of payment to the prior payment in full of the obligations of such Subsidiary Guarantor under the other provisions of this Article III and such Excess
Funding Guarantor shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section 3.08, (i) “Excess Funding Guarantor” means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii) “Excess Payment” means, in respect of any Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) “Pro Rata Share” means, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the aggregate fair saleable value of all properties of such Subsidiary Guarantor (excluding
any shares of stock or other equity interest of any other Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor (including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any obligations of any other Subsidiary Guarantor that have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable value of all
properties of the Company and all of the Subsidiary Guarantors exceeds the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of the Obligors hereunder
and under the other Loan Documents) of all of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary Guarantor that is a party hereto on the Second Restatement Effective Date, as of the Second Restatement Effective Date, and (B)
with respect to any other Subsidiary Guarantor, as of the date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
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SECTION 3.09 General Limitation on Guarantee
Obligations. In any action or proceeding involving any state corporate law, or any state or Federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Subsidiary
Guarantor under Section 3.01 would otherwise be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 3.01, then, notwithstanding any
other provision hereof to the contrary, the amount of such liability shall, without any further action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any other Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
SECTION 3.10 Termination or Release. (a) The
Guarantee of each Subsidiary Guarantor set forth in this Article III shall terminate with respect to all Obligations upon the date that the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full and all Letters of Credit and Acceptances shall have expired or terminated and all LC Disbursements shall have been reimbursed.
(b) The Guarantee of each Subsidiary Guarantor set forth in this Article III shall be automatically released if any Subsidiary Guarantor ceases to be a Subsidiary or becomes an Excluded Subsidiary,
in each case as a result of a transaction or designation permitted hereunder (as certified in writing delivered to the Administrative Agent by an authorized officer of the Company).
(c) In connection with any termination or release pursuant to paragraph (a) or (b) of this Section 3.10, the Administrative Agent shall execute and deliver to any Subsidiary Guarantor, at such
Subsidiary Guarantor’s expense, all documents that such Subsidiary Guarantor shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section 3.10 shall be without recourse to or
warranty by the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Subsidiary Borrowers represents and warrants (as to itself and each of its Subsidiaries) to the Lenders that:
SECTION 4.01 Organization; Powers. Each of the
Company and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
SECTION 4.02 Authorization; Enforceability.
The Transactions are within each Borrower’s and each other Loan Party’s corporate powers and have been duly authorized by all necessary corporate and, if required, by all necessary shareholder action. This Agreement and each of the other Loan
Documents have been duly executed and delivered by each Loan Party party thereto and constitutes, or when executed and delivered by such Loan Party will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each
Loan Party in accordance with its terms, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
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SECTION 4.03 Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for (i) such as have been obtained or made and are in full force and effect and (ii) filings and
recordings in respect of the Liens created pursuant to the Security Documents, (b) will not violate any Requirement of Law, (c) will not violate or result in a default under any Contractual Obligation upon the Company and its Subsidiaries or its or
their respective assets, or give rise to a right thereunder to require any payment to be made by the Company or any of its Subsidiaries, and (d) except for the Liens created pursuant to the Security Documents, will not result in the creation or
imposition of any Lien on any asset of the Company or any of its Subsidiaries.
SECTION 4.04 Financial Condition; No Material
Adverse Change.
(a) Financial Condition. The Company has heretofore furnished to the Lenders (including without limitation via
filings with the SEC) (i) the consolidated balance sheet and statements of income, stockholders’ equity and cash flows of the Company as of and for the fiscal years ended July 3, 2016, July 2,
2017 and, July 1, 2018 and June 30, 2019, in each case as reported on by BDO USA, LLP, and (ii) the unaudited condensed consolidated balance sheets of the Company as of September 30, 2018, December 30, 2018, and March 3129, 2019, December 29, 2019, and March 29, 2020, and the related unaudited condensed consolidated statements of income and cash flows for
the applicable periods ended on such dates. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its Subsidiaries as of such dates and for such
periods in accordance with GAAP. There are no liabilities of the Company or any of its Subsidiaries, fixed or contingent, which are material in relation to the consolidated financial condition of the Company that are not reflected in the most
recent consolidated financial statements of the Company delivered pursuant to this Section or Section 6.01(a) or (b) or in the notes thereto, other than liabilities arising in the ordinary course of business since the date of such financial
statements.
(b) No Material Adverse Change. Since July 1June 30, 20182019, there has not occurred any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 4.05 Properties.
(a) Property Generally. Each of the Company and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business, subject only to Liens permitted by Section 7.02 and except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes. Schedule 1.01(b) contains a true and complete list of each Mortgaged Property. The real property information provided to the Administrative Agent, the Lenders and the Issuing Lenders by or on
behalf of the Company and its Subsidiaries with respect to each Mortgaged Property is true, correct and complete in all respects.
(b) Intellectual Property. Each of the Company and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Company and its Subsidiaries does not infringe upon the rights of any other Person except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
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SECTION 4.06 Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters listed on Schedule 4.06(a)) or that involve this Agreement or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters listed on Schedule 4.06(b) and except with respect to
any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv)
knows of any facts that could reasonably be expected to result in any Environmental Liability.
(c) Disclosed Matters. Since the Second Restatement Effective Date, there has been no change in the status of the
Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.
SECTION 4.07 Compliance with Laws and Contractual
Obligations. Each of the Company and its Subsidiaries is in compliance with all Requirements of Law applicable to it or its property or all Contractual Obligations binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.08 Investment Company Act Status.
Neither the Company nor its Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
SECTION 4.09 Taxes. Each of the Company and
its Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.10 ERISA. Except with respect to any
matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (a) no ERISA Event has occurred or is reasonably expected to occur and (b) each Borrower and each of their ERISA Affiliates has
complied with the applicable provisions of ERISA and the Code with respect to each Pension Plan. The present value of all accumulated benefit obligations under each Pension Plan does not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets under such Pension Plan (determined in both cases using the applicable assumptions under Section 430 of the Code and the Treasury Regulations promulgated thereunder) by an amount
that could reasonably be expected to result in a Material Adverse Effect.
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SECTION 4.11 Disclosure. The Loan Parties have
disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the written reports, financial statements, certificates or other written information (other than projections, other forward looking information and information of a general economic and/or industry
specific nature) furnished by or on behalf of the Company or any Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement and the other Loan Documents or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not materially misleading; provided that with respect to projected financial information, each Borrower represents only that such information was prepared in good faith based upon reasonable assumptions believed to be reasonable
at the time of preparation thereof.
SECTION 4.12 Use of Credit. Neither the
Company nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part of
the proceeds of any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 4.13 Labor Matters. Except with
respect to any Disclosed Matters and except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (a) no collective bargaining agreement or other labor contract
will expire during the term of this Agreement, (b) to the Company’s knowledge, no union or other labor organization is seeking to organize, or to be recognized as bargaining representative for, a bargaining unit of employees of the Company or any
of its Subsidiaries, (c) there is no pending or, to the Company’s knowledge, threatened strike, work stoppage, material unfair labor practice claim or charge, arbitration or other labor dispute against or affecting the Company or any of its
Subsidiaries or their representative employees and (d) there are no actions, suits, charges, demands, claims, counterclaims or proceedings pending or, to the best of the Company’s knowledge, threatened against the Company or any of its
Subsidiaries, by or on behalf of, or with, its employees.
SECTION 4.14 Subsidiaries. Schedule 4.14 is a
complete and correct list of all of the Subsidiaries of the Company as of the Second Restatement Effective Date, together with, for each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding ownership
interests in such Subsidiary and (iii) the nature of the ownership interests held by each such Person and the percentage of ownership of such Subsidiary represented by such ownership interests. Except as disclosed in Schedule 4.14, (x) each of the
Company and its Subsidiaries owns, free and clear of Liens (other than Liens created pursuant to the Security Documents), and has the unencumbered right to vote, all outstanding ownership interests in each Person shown to be held by it in Schedule
4.14, (y) all of the issued and outstanding Capital Stock of each such Person organized as a corporation is validly issued, fully paid and nonassessable and (z) there are no outstanding Equity Rights with respect to such Person.
SECTION 4.15 Security Documents. The Liens
granted by the Security Documents constitute valid perfected first priority Liens on the properties and assets covered by the Security Documents, to the extent required by the Security Documents and subject to no prior or equal Lien except those
Liens permitted by Section 7.02.
SECTION 4.16 Anti-Corruption Laws and Sanctions. The Company has implemented and maintains in effect policies and procedures designed to ensure compliance in all material respects by the Company, its Subsidiaries and their respective directors, officers, employees
and agents with Anti-Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and their respective officers and employees, and to the knowledge of the Company, its directors and agents, are in compliance with Anti-Corruption
Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in any Borrower being designated as a Sanctioned Person. None of (a) the Company, any Subsidiary or
to the knowledge of the Company or such Subsidiary, any of their respective directors, officers or employees, or (b) to the knowledge of the Company, any agent of the Company or any Subsidiary that will act in any capacity in connection with or
benefit from the credit facility established hereby, is a Sanctioned Person. No Loan or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
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SECTION 4.17 Solvency. The Company and its
Subsidiaries on a consolidated basis, after giving effect to the Transactions and the incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith will be and will continue to be, Solvent.
SECTION 4.18 EEAAffected Financial Institution. No Loan Party is an EEAAffected Financial Institution.
ARTICLE V
CONDITIONS
CONDITIONS
SECTION 5.01 Conditions to Second Restatement
Effective Date. The effectiveness of this Agreement and the obligations of the Lenders to make the Loans and of the Issuing Lenders to issue Letters of Credit and create Acceptances hereunder shall not become effective until the date on
which the following conditions have been satisfied (or such condition shall have been waived in accordance with Section 10.02):
(a) Executed Counterparts. The Administrative Agent shall have received from the Company,
each Subsidiary Borrower, each Guarantor, Existing Lenders constituting the “Required Lenders” (under and as defined in the Existing Credit Agreement) and each Lender either (i) a counterpart of this Agreement signed on behalf of such Person or
(ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or email transmission of a signed signature page to this Agreement) that such Person has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Loan Parties. The Administrative Agent shall have received (i)
a written opinion (addressed to the Administrative Agent, the Issuing Lenders and the Lenders and dated the Second Restatement Effective Date) of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent, and (ii) if requested by the Administrative Agent, written opinions of such other counsel for the Loan Parties as is satisfactory to the Administrative Agent (addressed to the Administrative Agent, the
Issuing Lenders and the Lenders and dated the Second Restatement Effective Date), in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Parties, this Agreement or the
Transactions as the Administrative Agent shall reasonably request (and the Company hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(c) Corporate Documents. The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan
Parties, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
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(d) Officer’s Certificate. The Administrative Agent shall have received a certificate, dated
the Second Restatement Effective Date and signed by a senior executive officer of the Company, to the effect that (a) the representations and warranties of the Borrowers set forth in Article IV, and of each Loan Party in each of the other Loan
Documents to which it is a party, are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the Second Restatement Effective Date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific date), and (b) at the time of and immediately after giving effect to the extensions of credit hereunder on the Second Restatement Effective Date, no Default has occurred
and is continuing.
(e) Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate
executed by the chief financial officer of the Company in the form of Exhibit F hereto.
(f) Existing Indebtedness. The Administrative Agent shall have received reasonably
satisfactory evidence that, on or substantially concurrently with the Second Restatement Effective Date, (i) the outstanding principal amount of Existing Revolving Credit Loans and funded participations in Existing LC Disbursements of the Existing
Revolving Credit Lenders shall have been repaid (or deemed repaid pursuant to the terms hereof), together with all accrued interest thereon, accrued fees and all other amounts payable to the Existing Revolving Credit Lenders pursuant to the
Existing Credit Agreement and (ii) the outstanding principal amount of Existing Term Loans of the Existing Term Lenders shall have been repaid, together with all accrued interest thereon, accrued fees and other amounts payable to the Existing Term
Lenders pursuant to the Existing Credit Agreement.
(g) Financial Information. The Administrative Agent shall have received (i) the financial
statements of the Company referred to in Section 4.04(a)(i); (ii) the unaudited interim consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for each fiscal quarter
ended at least 45 days before the Second Restatement Effective Date after the date of the latest applicable financial statements delivered pursuant to clause (i) of this paragraph (in the case of this clause (ii), without footnote disclosure); and
(iii) projections for the fiscal years through the 2024 fiscal year of the results of operations and financial condition of the Company and its Subsidiaries (together with relevant assumptions related thereto), on a consolidated basis.
(h) [Reserved].
(i) USA PATRIOT Act. The Administrative Agent and the Joint Lead Arrangers shall have
received, at least 3 days prior to the Second Restatement Effective Date, all documentation and other information with respect to the Company and its Subsidiaries that shall have been reasonably requested by the Administrative Agent or any Joint
Lead Arranger in writing at least 5 days prior to the Second Restatement Effective Date that the Administrative Agent or any Joint Lead Arranger reasonably determines is required by regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the USA PATRIOT Act.
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(j) Fees and Expenses. All fees and expenses required to be paid hereunder and invoiced
before the Second Restatement Effective Date shall have been paid in full in cash or authorized to be deducted from the proceeds of any Loans funded on the Second Restatement Effective Date.
(k) Security Documents. The Administrative Agent shall have received (i) a reaffirmation
agreement, executed and delivered by an authorized officer of the Company and each other Loan Party that is party to the Existing Credit Agreement, reaffirming each such Loan Party’s respective obligations with respect to each Security Document,
(ii) certificates, if any, representing the Pledged Equity (as defined in the Security Agreement) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (as defined in the Security Agreement) indorsed in
blank, in each cash, other than any such certificates, stock powers, and instruments already in the possession of the Administrative Agent pursuant to the terms of the Security Agreement, and (iii) each document (including, without limitation, any
Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.02), which shall have been filed, registered or
recorded or shall have been delivered to the Administrative Agent in proper form for filing, registration or recordation (it being understood that no account control agreements or landlord waivers shall be required to be obtained or otherwise
delivered by any of the Loan Parties). In addition, the Administrative Agent shall have received the results of recent lien searches in each relevant jurisdiction with respect to the Company and its subsidiaries, and such searches shall reveal no
Liens on any of the assets of the Company or its subsidiaries except for Liens permitted by Section 7.02 or Liens to be discharged pursuant to documentation or arrangements reasonably satisfactory to the Administrative Agent.
(l) Flood Hazards. The Administrative Agent shall have received for each Mortgaged Property
(i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination, (ii) if such Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area, a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and the
applicable Loan Party relating thereto) and (iii) if such Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a special flood hazard area, a copy of an insurance policy, or a declaration page relating to an insurance policy, in either case showing coverage for flood insurance in an amount reasonably
satisfactory to the Administrative Agent, the Lenders and the Issuing Lenders and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws, each of which shall (A) be endorsed or
otherwise amended to include a “standard” or “New York” lender's loss payable or mortgagee endorsement (as applicable), (B) name the Administrative Agent, on behalf of the Secured Parties, as additional insured and loss payee/mortgagee, (C)
identify the address of each property located in a special flood hazard area, the applicable flood zone designation and the flood insurance coverage and deductible relating thereto and (D) be otherwise in form and substance reasonably satisfactory
to the Administrative Agent, the Lenders and the Issuing Lenders. The Administrative Agent has adopted internal policies and procedures that address requirements placed on federally regulated Lenders under the Flood Insurance Laws. The
Administrative Agent will post on the applicable electronic platform (or otherwise distribute to each lender in the syndicate) documents that it receives in connection with the Flood Insurance Laws. However, the Administrative Agent reminds each
Lender and Participant that, pursuant to the Flood Insurance Laws, each federally regulated Lender (whether acting as a Lender or Participant in the facility) is responsible for assuring its own compliance with the flood insurance requirements.
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SECTION 5.02 Each Credit Event. The obligation
of each Lender to make any Loan, and of the Issuing Lenders to issue, amend, renew or extend any Letter of Credit or create any Acceptance is additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrowers set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and
correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit or the date of creation of
such Acceptance, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and
(b) at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit or creation of such Acceptance, as
applicable, no Default shall have occurred and be continuing.
Each Borrowing, each issuance, amendment, renewal or extension of a Letter of Credit and each creation of an Acceptance shall be deemed to constitute a
representation and warranty by the Company on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit and Acceptances shall have expired or terminated and all LC Disbursements shall have been reimbursed, each Borrower (on behalf of itself and each of its Subsidiaries) covenants and agrees with the Lenders that:
SECTION 6.01 Financial Statements and Other
Information. The Company will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Company, the audited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of
the Company and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by BDO USA, LLP or other independent public accountants of recognized
national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of the first three fiscal quarters of the Company, the consolidated balance sheets and related consolidated statements of income and cash flows of the
Company and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the
corresponding period or periods of the previous fiscal year, all certified by a Responsible Officer as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
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(c) concurrently with any delivery of financial statements under clause (a) or (b) of this Section, (X) a certificate of a Responsible Officer (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.11 and (iii)
stating whether any change in GAAP or in the application thereof has occurred since the date of the most recent audited financial statements of the Company referred to in Section 4.04(a) and, if any such change has occurred, specifying the effect
of such change on the financial statements accompanying such certificate and (Y) a certificate of a Responsible Officer setting forth the information required pursuant to Annexes 1 through 4 of the Security Agreement and certifying that such
Annexes are true and correct and contain all applicable collateral as of such date or confirming that there has been no change in such information since the date of the most recent certificate delivered pursuant to this Section 6.01(c)(Y);
(d) promptly following any request therefor by the Administrative Agent or any Lender, a certificate of the accounting firm that reported on any financial statements delivered under
clause (a) of this Section, stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly upon receipt thereof, copies of all other reports submitted to the Company by its independent certified public accountants in connection with any annual or interim audit
or review of the books of the Company made by such accountants;
(f) annually, as soon as available, but in any event within 60 days after the first day of each fiscal year of the Company, an annual budget of the Company and its Subsidiaries for
such fiscal year in the same form prepared for the Company’s board of directors or in such other form reasonably satisfactory to the Administrative Agent;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the
SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Company to its shareholders generally, as the case may be;
(h) promptly following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that any Borrower or any ERISA Affiliate may request with respect to
any Multiemployer Plan; provided that if the Borrowers or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of
the Administrative Agent, the Borrowers and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrowers shall provide copies of such documents and notices to the
Administrative Agent promptly after receipt thereof; and
(i) promptly following any request therefor, (x) such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or
compliance with the terms of this Agreement and the other Loan Documents, as the Administrative Agent or any Lender may reasonably request and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for
purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation.
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Documents required to be delivered pursuant to Sections 6.01(a), (b) or (g) (to the extent any such documents are included in materials otherwise filed
with the SEC) shall be deemed to have been delivered on the date (i) on which the Company posts such documents or provides a link thereto on the Company’s website or (ii) on which such documents are posted on the Company’s behalf on
Intralinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Company
shall provide the Administrative Agent with electronic mail versions of such documents upon request. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of
such document to it and maintaining its copies of such documents.
SECTION 6.02 Notices of Material Events. The
Company will furnish to the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Company or any of its Affiliates, other
than disputes in the ordinary course of business or, whether or not in the ordinary of business, disputes involving amounts exceeding $15,000,000;
(c) the occurrence of any ERISA Event that, individually or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect; and
(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 6.03 Existence; Conduct of Business.
The Company will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, Division, liquidation or dissolution permitted under Section 7.03.
SECTION 6.04 Payment of Taxes and Other Obligations.
The Company will, and will cause each of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Company or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material Adverse Effect.
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SECTION 6.05 Maintenance of Properties. The
Company will, and will cause each of its Subsidiaries to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted.
SECTION 6.06 Maintenance of Insurance. (a) The
Company will, and will cause each of its Subsidiaries to, maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations; provided that the Company may maintain self-insurance reasonable and customary for similarly situated Persons.
(b) With respect to each Mortgaged Property that is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special
flood hazard area” with respect to which flood insurance has been made available under Flood Insurance Laws, the Company shall, or shall cause the applicable Loan Party to, (i) maintain, with financially sound and reputable insurance companies
(except to the extent that any insurance company insuring the Mortgaged Property of the Company and each other Loan Party ceases to be financially sound and reputable after the Second Restatement Effective Date, in which case, the Company shall
promptly replace such insurance company with a financially sound and reputable insurance company), such flood insurance in such reasonable total amount as the Administrative Agent and the other Lenders may from time to time reasonably require, and
otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) promptly upon request of the Administrative Agent or any other Lender, deliver to the Administrative Agent (for
distribution to all Lenders), evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent and the Lenders, including, without limitation, evidence of annual renewals of such insurance.
SECTION 6.07 Books and Records. The Company
will, and will cause each of its Subsidiaries to, keep proper books of record and account in which entries that are full, true and correct in all material respects are made of all dealings and transactions in relation to its business and
activities.
SECTION 6.08 Inspection Rights. The Company
will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at the expense of the Company and at such reasonable times and as often as reasonably requested; provided that any such request
and visit by any Lender shall be coordinated through the Administrative Agent.
SECTION 6.09 Compliance with Laws and Contractual
Obligations. The Company will, and will cause each of its Subsidiaries to, comply with all Requirements of Law (including any Environmental Laws) applicable to it or its property, and all Contractual Obligations binding upon it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Company will maintain in effect policies and procedures
designed to ensure compliance in all material respects by the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
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SECTION 6.10 Use of Proceeds and Letters of Credit.
(i) The proceeds of the Term Loans on the Second Restatement Effective Date shall be used to refinance the Existing Term Loans, (ii) the proceeds of the Revolving Credit Loans on the Second Restatement Effective Date may be used to pay fees and expenses related to the Transactions, to refinance the Existing Credit Agreement, and for working capital and general corporation purposes and (iii) the proceeds of the Revolving Credit Loans, the Letters of Credit issued and Acceptances created hereunder after the Second Restatement Effective Date will be used for working capital (subject to the Working Capital Sublimit) and, together with the proceeds of the Term Loans A-1 and any Incremental Term Loans, for general corporate purposes of the Company and its Subsidiaries (including for the consummation of any Acquisitions and Capital Expenditures not prohibited by this Agreement). No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations U and X.
(i) The proceeds of the Term Loans on the Second Restatement Effective Date shall be used to refinance the Existing Term Loans, (ii) the proceeds of the Revolving Credit Loans on the Second Restatement Effective Date may be used to pay fees and expenses related to the Transactions, to refinance the Existing Credit Agreement, and for working capital and general corporation purposes and (iii) the proceeds of the Revolving Credit Loans, the Letters of Credit issued and Acceptances created hereunder after the Second Restatement Effective Date will be used for working capital (subject to the Working Capital Sublimit) and, together with the proceeds of the Term Loans A-1 and any Incremental Term Loans, for general corporate purposes of the Company and its Subsidiaries (including for the consummation of any Acquisitions and Capital Expenditures not prohibited by this Agreement). No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations U and X.
SECTION 6.11 Additional Subsidiary Guarantors; Real
Property; Further Assurances.
(a) Subsidiary Guarantors. The Company will take such action, and will cause each of its Domestic Subsidiaries
(other than any Excluded Subsidiary), to take such action, from time to time as shall be necessary to ensure that all such Domestic Subsidiaries of the Company are “Subsidiary Guarantors” hereunder. Without limiting the generality of the foregoing,
in the event that the Company or any of its Subsidiaries shall form or acquire any new Domestic Subsidiary that shall constitute a Subsidiary hereunder (other than an Excluded Subsidiary), within 45 days of the applicable formation or acquisition (as such time period may be extended by the Administrative Agent in its sole discretion) the Company and its Subsidiaries
will cause such new Subsidiary to:
(i) become a “Subsidiary Guarantor” hereunder, and a “Securing Party” under the Security Agreement pursuant to a Subsidiary Joinder Agreement;
(ii) cause such Domestic Subsidiary to take such action (including delivering such shares of stock, executing and delivering such Uniform Commercial Code financing statements) as shall
be necessary to create and perfect valid and enforceable first priority Liens on substantially all of the personal property of such new Subsidiary as collateral security for the obligations of such new Subsidiary hereunder to the extent required
pursuant to the Security Agreement; and
(iii) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by the Loan Parties pursuant to
Section 5.01 on the Second Restatement Effective Date as the Administrative Agent shall reasonably request.
(b) Real Property. If, subsequent to the Second Restatement Effective Date, a Loan Party (including a Person that
becomes a Guarantor pursuant to Section 6.11(a)) shall acquire any real property having a fair market value of $10,000,000 (a “Material Real Property”) or more in the reasonable estimation of the Company, the Company shall promptly (and in
any event within 10 Business Days), after any Responsible Officer of a Loan Party acquires knowledge of same, notify the Administrative Agent, the Lenders and the Issuing Lenders of same. The relevant Loan Party shall not be required to execute
and deliver any Mortgage on such Material Real Property until (x) at least 45 days from the date the Company provided the Administrative Agent, the Lenders and the Issuing Lenders with prior written notice of such acquisition of such Material Real
Property and (y) the Company has received confirmation from the Administrative Agent, the Lenders and the Issuing Lenders that flood insurance due diligence and flood insurance compliance as required by Section 6.11(b)(ix) hereto has been
completed. As soon as practicable thereafter, but in any event within 90 days thereafter (or such later date as the Administrative Agent may agree), each Loan Party shall, and shall cause each of its Subsidiaries to, take such action at its own
expense as reasonably requested by the Administrative Agent, including, without limitation, grant to the Administrative Agent the following with respect to such Material Real Property:
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(i) Mortgages; Fixture Filings. The Company will deliver to the Administrative Agent a
Mortgage encumbering such Mortgaged Property in favor of the Administrative Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property,
and otherwise in form for recording in the recording office of the appropriate Clerk of Court of the County where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as may be necessary
or advisable in connection with the recording or filing thereof to create a lien under applicable laws, and such financing statements and other instruments as may be necessary or advisable to grant a mortgage or deed of trust lien under the laws of
the applicable jurisdiction on the Mortgaged Property and fixtures located thereon;
(ii) Consents and Approvals. The Company will deliver to the Administrative Agent such
consents, approvals, assignments, amendments, supplements, estoppels, tenant subordination agreements, non-disturbance agreements or other instruments as may be reasonably necessary or advisable in order for the applicable Loan Party to grant the
Lien of the Mortgage with respect thereto;
(iii) Title Insurance Policies. The Company will deliver to the Administrative Agent a policy
of title insurance (or marked-up title insurance commitment having the effect of a policy of title insurance) (a “Title Policy”) insuring the Lien of such Mortgage as a valid first mortgage or deed of trust Lien on the Mortgaged Property
described therein in an amount not less than the estimated fair market value of such Mortgaged Property as reasonably determined by the Company, which Title Policy shall (A) be issued by a nationally-recognized title insurance company reasonably
acceptable to the Administrative Agent (the “Title Company”), (B) include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Administrative Agent, (C) be supplemented by a
“tie-in” or “aggregation” endorsement, if available under applicable law, and such other endorsements as may reasonably be requested by the Administrative Agent (including endorsements on matters relating to usury, first loss, zoning, contiguity,
revolving credit, doing business, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, and so-called comprehensive coverage over covenants and restrictions) if available under
applicable law at commercially reasonable rates, and (E) contain no other exceptions to title other than Permitted Liens and other exceptions acceptable to the Administrative Agent in its sole discretion;
(iv) Affidavits and Other Information. The Company will deliver to the Administrative Agent
such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as may be required to induce the Title Company to issue the Title Policies and endorsements
contemplated above;
(v) Payment of Title Fees and Premiums. The Company will deliver to the Administrative Agent
evidence reasonably acceptable to the Administrative Agent of payment by Borrower of all Title Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required
for the recording of the Mortgages and issuance of the Title Policies and endorsements contemplated above;
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(vi) Leases. The Company will deliver to the Administrative Agent copies of all leases (or
other agreements relating to possessory interests, if any) affecting such Mortgaged Property pursuant to which any Loan Party holds the lessor’s (or other grantor’s or licensor’s) interest, which agreement shall, if so requested by the
Administrative Agent, be subordinate to the Lien of the applicable Mortgage, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Administrative
Agent;
(vii) Opinions. The Company will deliver to the Administrative Agent favorable written
opinions, addressed to the Administrative Agent and the Secured Parties, of local counsel to the Loan Parties in each jurisdiction (i) where a Mortgaged Property is located regarding the enforceability of each such Mortgage and customary related
matters and (ii) where the applicable Loan Party granting the Mortgage on said Mortgaged Property is organized, regarding the due execution, delivery and enforceability of each such Mortgage, and such other matters as may be reasonably requested by
the Administrative Agent, each in form and substance reasonably acceptable to the Administrative Agent; and
(viii) Surveys. Upon request by the Administrative Agent (i) for any Mortgaged Property for
which a survey has been completed and (ii) with respect to any Mortgaged Property designated as a special flood hazard area by the Federal Emergency Management Agency (or any successor agency), the Company will deliver to the Administrative Agent a
survey of such Mortgaged Property that is (A) (w) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (x) certified to the Administrative Agent and the Title Company, (y)
compliant with the minimum requirements of the American Land Title Association as such requirements are in effect on the date of preparation thereof and (z) sufficient for the Title Company to remove the standard survey exception from the
applicable Title Policy and to provide reasonable and customary survey-related endorsements thereto or (B) otherwise acceptable to the Administrative Agent (a “Survey”); provided, however, that a Survey shall not be required to the extent
that (x) an existing survey together with an “affidavit of no change” satisfactory to the Title Company is delivered to the Administrative Agent and the Title Company and (y) the Title Company removes the standard survey exception from the
applicable Title Policy and provides reasonable and customary survey-related endorsements thereto.
(ix) Flood Hazards. The Administrative Agent shall have received for each Mortgaged Property
(i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination, (ii) if such Mortgaged Property located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special
flood hazard area, a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the Borrower and the applicable Loan Party relating thereto) and (iii) if such Mortgaged Property located in an area identified by
the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area, a copy of an insurance policy, or a declaration page relating to an insurance policy, in either case showing coverage for flood insurance in an amount
reasonably satisfactory to the Administrative Agent, the Lenders and the Issuing Lenders and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws, each of which shall (A) be
endorsed or otherwise amended to include a “standard” or “New York” lender's loss payable or mortgagee endorsement (as applicable), (B) name the Administrative Agent, on behalf of the Secured Parties, as additional insured and loss payee/mortgagee,
(C) identify the address of each property located in a Special Flood Hazard Area, the applicable flood zone designation and the flood insurance coverage and deductible relating thereto and (D) be otherwise in form and substance reasonably
satisfactory to the Administrative Agent, the Lenders and the Issuing Lenders. The Administrative Agent has adopted internal policies and procedures that address requirements placed on federally regulated Lenders under the Flood Insurance Laws.
The Administrative Agent will post on the applicable electronic platform (or otherwise distribute to each lender in the syndicate) documents that it receives in connection with the Flood Insurance Laws. However, the Administrative Agent reminds
each Lender and Participant that, pursuant to the Flood Insurance Laws, each federally regulated Lender (whether acting as a Lender or Participant in the facility) is responsible for assuring its own compliance with the flood insurance
requirements.
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(x) Officers Certificates. The Administrative Agent shall have received a certificate of a
Responsible Officer in form and substance reasonably acceptable to the Administrative Agent certifying that the attached updated Schedule 1.01(b) sets forth the address of all Material Real Property that is owned by the Loan Parties as of the date
thereof.
(c) Further Assurances. The Company will, and will cause each of its Subsidiaries to, take such action from time
to time as shall reasonably be requested by the Administrative Agent to effectuate the purposes and objectives of this Agreement, including without limitation providing the Administrative Agent evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as additional insured or mortgagee and loss payee, as applicable, under each insurance policy with respect to such insurance as to
which the Administrative Agent shall have reasonably requested to be so named. Without limiting the foregoing, in the event that any additional Capital Stock shall be issued by any Subsidiary, the Loan Party agrees forthwith to deliver to the
Administrative Agent pursuant to the Security Agreement the certificates evidencing such shares of stock, accompanied by undated stock powers executed in blank and to take such other action as the Administrative Agent shall request to perfect the
security interest created therein pursuant to the Security Agreement. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Loan Party shall be required to grant or perfect a security interest in any property
with respect to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Company, that the costs or other consequences of granting or perfecting a security interest therein are excessive in relation to
the benefits to Secured Parties afforded thereby. If requested by the Administrative Agent, any Lender or any Issuing Lender, the Company will, and will cause each of its Subsidiaries to cooperate with and provide any information necessary for the
Administrative Agent, such Lender or such Issuing Lender, as the case may be, to conduct its flood due diligence and flood insurance compliance.
SECTION 6.12 Post-Closing Covenant.
Real Property. Within 90 days of the Second Restatement Effective Date (as such time period may be extended by the Administrative Agent in its sole discretion) with respect to any Mortgaged Property owned in fee simple by any Loan Party on
the Second Restatement Effective Date:
(a) Mortgage Amendments. The Company will deliver to the Administrative Agent an amendment
to each existing Mortgage (a “Mortgage Amendment”) encumbering each Mortgaged Property in favor of the Administrative Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or
holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of the appropriate Clerk of Court of the County where each such Mortgaged Property is situated, together with such certificates,
affidavits, questionnaires or returns as may be necessary or advisable in connection with the recording or filing thereof to create a lien under applicable laws;
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(b) Title Insurance Policies. The Company will deliver to the Administrative Agent with
respect to each Mortgaged Property, a date down endorsement to each existing mortgagee title insurance policy or, if not available, a new Title Policy, disclosing no additional liens or title exceptions
against the Mortgaged Properties other than Permitted Liens, extending the date of such mortgagee’s title insurance policy to the date of recordation of such Mortgage Amendment, and shall otherwise be in form and substance reasonably acceptable to
the Administrative Agent;
(c) Opinions. The Company will deliver to the Administrative Agent favorable written
opinions, addressed to the Administrative Agent and the Secured Parties, of local counsel to the Loan Parties in each jurisdiction (i) where a Mortgaged Property is located regarding the enforceability of each such Mortgage, as amended by a
Mortgage Amendment, and customary related matters and (ii) where the applicable Loan Party is organized, regarding the due execution, delivery and enforceability of each such Mortgage, as amended by a Mortgage Amendment, and such other matters as
may be reasonably requested by the Administrative Agent, each in form and substance reasonably acceptable to the Administrative Agent.
ARTICLE VII
NEGATIVE COVENANTS
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit and Acceptances have expired or terminated and all LC Disbursements shall have been reimbursed, each Borrower (on behalf of itself and each of its Subsidiaries) covenants and agrees with the Lenders that:
SECTION 7.01 Indebtedness. The Company will
not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder and the other Loan Documents;
(b) Indebtedness existing on the Second Restatement Effective Date and set forth on Schedule 7.01 and any Permitted Refinancing thereof;
(c) (i) Indebtedness of the Company to any Loan Party, (ii) Indebtedness of any Loan Party (other than the Company) to the Company or any other Loan Party and (iii) Indebtedness of
the Company or any Subsidiary to any Subsidiary that is not a Loan Party; provided that the aggregate principal amount of Indebtedness incurred by the Loan Parties to any Subsidiary that is not a Loan Party after the Second Restatement
Effective Date, together with the aggregate amount of Investments by the Loan Parties in such Subsidiaries made under Section 7.06(c)(ii) after the Second Restatement Effective Date, shall not exceed $20,000,000 at any time outstanding;
(d) (x) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that such Indebtedness is incurred prior to, at the time of or within 90 days after such acquisition or the completion of such construction or improvement and (y) any Permitted
Refinancing thereof; provided that the sum of the aggregate principal amount of Indebtedness permitted by this clause (d) shall not exceed $20,000,000 at any time outstanding;
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(e) (x) Indebtedness of any Person that becomes a Subsidiary after the Second Restatement Effective Date other than as a result of a Division; provided that such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (y) any Permitted Refinancing thereof; provided that the sum of the aggregate principal
amount of Indebtedness permitted by this clause (e) shall not exceed $20,000,000 at any time outstanding;
(f) other Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time outstanding;
(g) Indebtedness incurred after the Second Restatement Effective Date by the Company or any Subsidiary not exceeding an aggregate principal amount of $30,000,000 at any time
outstanding pursuant to Sale/Leaseback Transactions permitted under Section 7.12; and
(h) (x) additional unsecured Indebtedness of the Company or any Subsidiary having no scheduled principal payments or prepayments prior to the date that is 6 months after the later of
the (i) Term Loan Maturity Date or (ii) the Revolving Credit Commitment Termination Date; provided that (i) no Event of Default has occurred and is continuing or will immediately result from the incurrence of such Indebtedness and (ii)
after giving pro forma effect to the incurrence of such Indebtedness and the use of proceeds thereof as if the incurrence of such Indebtedness had occurred on the first day of the most recent Reference Period for which financial statements are
available, the Consolidated Leverage Ratio is less than or equal to the Required Ratio minus 0.25x on the last day of such period (without giving effect to any temporary increase in the Required Ratio as set forth in the proviso to Section 7.11(a))
and (y) any Permitted Refinancing thereof.
SECTION 7.02 Liens. The Company will not, and
will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(a) Liens created pursuant to the Loan Documents;
(b) Permitted Liens;
(c) any Lien on any property or asset of the Company or any of its Subsidiaries existing on the Second Restatement Effective Date and set forth on Schedule 7.02; provided that
(i) no such Lien shall extend to any other property or asset of the Company or any of its Subsidiaries and (ii) any such Lien shall secure only those obligations which it secures on the Second Restatement Effective Date and extensions, renewals,
replacements and combinations thereof that do not increase the outstanding principal amount thereof or commitment therefor, in each case, as in effect on the Second Restatement Effective Date;
(d) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by Section 7.01(d) so long as such Indebtedness permitted by Section 7.01(d) does not exceed an aggregate principal amount of $20,000,000 at any time outstanding, (ii) the Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets or otherwise constitutes a Permitted Refinancing of Indebtedness satisfying this clause (ii), and (iii) such security interests shall not apply to any other property or assets of the
Company or any Subsidiary;
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(e) any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the Second Restatement Effective Date prior to the time such Person becomes a Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 7.01(e) so long as such Indebtedness permitted by
Section 7.01(e) does not exceed an aggregate principal amount of $20,000,000, (ii) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (iii) such Lien shall
not apply to any other property or assets of the Company or any Subsidiary and (iv) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and
extensions, renewals and replacements thereof that do not increase the original outstanding principal amount thereof; and
(f) Liens not otherwise permitted by this Section 7.02 so long as neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair
market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as to the Company and all Subsidiaries) $15,000,000 at any one time.
SECTION 7.03 Mergers, Consolidations, Etc. The
Company will not, and will not permit any of its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or consummate a Division
as the Dividing Person, except that:
(a) any Subsidiary may be merged or consolidated with or into any Borrower, so long as (i) if the Company is a party to such transaction, the Company is the surviving entity or (ii)
otherwise, any Subsidiary which is a Loan Party is the surviving entity;
(b) any Subsidiary may be merged or consolidated with or into any other Subsidiary, so long as if any Subsidiary party to such transaction is a Loan Party, the surviving entity
thereof is a Loan Party;
(c) any Subsidiary may be dissolved or liquidated if the Company determines in good faith such liquidation or dissolution is in the best interests of the Company and not materially
disadvantageous to the Lenders and all assets (if any) of such Subsidiary are transferred to a Loan Party prior to such dissolution or liquidation; and
(d) any Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing
Person are held by one or more Subsidiaries at such time or, if the Dividing Person was a Loan Party immediately prior to such Division, by one or more Loan Parties at such time, or with respect to assets not so held by one or more Subsidiaries or
Loan Parties, as applicable, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 7.04.
SECTION 7.04 Dispositions. The Company will
not, and will not permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its business or property, whether now owned or hereafter acquired (including
receivables and leasehold interests), except:
(a) obsolete or worn out property, tools or equipment no longer used or useful in its business;
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(b) any inventory or other property sold or disposed of in the ordinary course of business and for fair consideration;
(c) the sale, conversion or other disposition of any stores or “flower fulfillment centers” operated by the Company or any Subsidiary to franchisees for fair consideration;
(d) any Subsidiary of the Company may sell, lease, transfer or otherwise dispose of any or all of its property to the Company or any wholly owned Subsidiary of the Company that is a
Loan Party;
(e) the Capital Stock of any Subsidiary may be sold, transferred or otherwise disposed of to the Company or any wholly owned Subsidiary of the Company that is a Loan Party; and
(f) Dispositions of property by the Company or any Subsidiary having an aggregate fair market value not exceeding the greater of (i) 20% of consolidated total assets (as set forth on
the consolidated balance sheet of the Company and its Subsidiaries as of the most recent fiscal quarter for which financial statements are available) per annum and (ii) $150,000,000 in the aggregate;
(g) Dispositions of property by the Company or any Subsidiary to effect Sale/Leaseback Transactions permitted under Section 7.12; and
(h) Leases of real or personal property in the ordinary course of business which do not materially interfere with the business of the Company and its
Subsidiaries.
SECTION 7.05 Lines of Business. The Company
will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Company and its Subsidiaries on the Second Restatement Effective Date and businesses
reasonably related or incidental or ancillary thereto.
SECTION 7.06 Investments and Acquisitions. The
Company will not, and will not permit any of its Subsidiaries to, make or suffer to exist any Investment in any Person or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a
business unit, except:
(a) Cash Equivalents;
(b) Investments (other than Investments permitted under clauses (a) and (c) of this Section) existing on the Second Restatement Effective Date and set forth on Schedule 7.06;
(c) (i) Investments by any Loan Party in any other Loan Party; and (ii) Investments by the Company or any Subsidiary in any Subsidiary that is not a Loan Party; provided that
the aggregate amount of Investments by the Loan Parties in any Subsidiary that is not a Loan Party after the Second Restatement Effective Date, together with the aggregate principal amount of Indebtedness owing by any Loan Party to such
Subsidiaries incurred under Section 7.01(c)(iii) after the Second Restatement Effective Date, shall not exceed $20,000,000;
(d) Indebtedness permitted by Section 7.01;
(e) purchases of inventory and other property to be sold or used in the ordinary course of business;
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(f) Acquisitions after the Second Restatement Effective Date by the Company or any other Loan Party; provided that (i) if such Acquisition is an acquisition of Capital Stock
of a Person, such Acquisition shall not be opposed by the board of directors (or similar governing body) of such Person, (ii) no Default shall have then occurred and be continuing or would result therefrom, (iii) after giving effect to such
Acquisition on a pro forma basis as if such Acquisition had occurred on the first day of the most recent Reference Period for which financial statements are available, the Consolidated Leverage Ratio is less than or equal to the Required Ratio on
the last day of such period; and (iv) prior to the consummation of any such Acquisition, the Administrative Agent shall have received a certificate of a Responsible Officer setting forth the calculations required to determine compliance with clause
(iii) above and certifying that the conditions set forth in this clause (f) with respect to such Acquisition have been satisfied;
(g) Investments (including debt obligations) received by the Company and its Subsidiaries in connection with the bankruptcy or reorganization of suppliers and/or customers and in good
faith settlement of delinquent obligations of, and other disputes with, customers and/or suppliers arising in the ordinary course of business;
(h) Investments under Swap Agreements permitted by Section 7.10;
(i) bona fide advances to employees and officers of the Company and its Subsidiaries for the purpose of paying payroll, travel and related expenses incurred for proper business
purposes of the Company or such Subsidiary;
(j) Investments received by the Company and its Subsidiaries in connection with any Disposition permitted by Section 7.04;
(k) Investments held by any Person that becomes a Subsidiary after the Second Restatement Effective Date; provided that (i) such Investments exist at the time such Person
becomes a Subsidiary and are not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) such Investments shall not be increased after such time unless such increase is permitted by another clause of this
Section;
(l) other Investments after the Second Restatement Effective Date; provided that (i) no Event of Default has occurred and is continuing or will immediately result from such
Investment and (ii) after giving effect to such Investment on a pro forma basis as if such Investment had occurred on the first day of the most recent Reference Period for which financial statements are available, the Consolidated Leverage Ratio
is less than or equal to the Required Ratio minus 0.50x on the last day of such period (without giving effect to any temporary increase in the Required Ratio as set forth in the proviso to Section 7.11(a));
(m) Investments by the Company or any Subsidiary in the Capital Stock of any other Person (other than any Acquisition) in an aggregate amount (valued at cost on the date such
Investment was made) not exceeding $10,000,000; and
(n) in addition to Investments otherwise expressly permitted by this Section 7.06, Investments by the Company or any of its Subsidiaries in an aggregate amount (valued at cost on the
date such Investment was made) not to exceed $35,000,000 during the term of this Agreement.
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SECTION 7.07 Restricted Payments. The Company
will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that:
(a) the Company may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock;
(b) the Company may make Restricted Payments after the Second Restatement Effective Date in an aggregate amount not exceeding $75,000,000; provided that, at the time of any
such Restricted Payment and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(c) the Company may make Restricted Payments after the Second Restatement Effective Date; provided that, (i) at the time of any such Restricted Payment and immediately after
giving effect thereto, no Default shall have occurred and be continuing and (ii) after giving effect to any such Restricted Payment on a pro forma basis as if such Restricted Payment had occurred on the first day of the most recent Reference Period
for which financial statements are available, the Consolidated Leverage Ratio is less than or equal to the Required Ratio minus 0.50x (without giving effect to any temporary increase in the Required Ratio pursuant to the proviso set forth in
Section 7.11(a)) on the last day of such period;
(d) the Company may pay cash dividends in respect of preferred Capital Stock of the Company not exceeding an aggregate amount of $20,000,000 in any fiscal year; provided that
(i) at the time of such dividend and immediately after giving effect thereto, no Default shall have occurred and be continuing and (ii) after giving effect to any such dividend on a pro forma basis as if such dividend had occurred on the first day
of the most recent Reference Period for which financial statements are available, the Consolidated Leverage Ratio is less than or equal to the Required Ratio and the Consolidated Fixed Charge Ratio is not less than the Consolidated Fixed Charge
Ratio applicable during such period;
provided that nothing herein shall be deemed to prohibit (x) the payment of dividends by any Subsidiary of the Company to the Company or any other Subsidiary of the Company or, if applicable, any minority shareholder of such Subsidiary
(in accordance with the percentage of the Capital Stock of such Subsidiary owned by such minority shareholder) and (y) repurchases of Capital Stock deemed to occur as a result of the surrender of such Capital Stock for cancellation in connection
with the exercise of stock options or warrants.
SECTION 7.08 Transactions with Affiliates. The
Company will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except:
(a) transactions in the ordinary course of business at prices and on terms and conditions not less favorable to the Company or such Subsidiary than could be obtained on an arm’s
length basis from a Person that is not an Affiliate;
(b) transactions between or among the Company and its wholly-owned Subsidiaries not involving any other Affiliate;
(c) any Investment permitted by Section 7.06;
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(d) any Restricted Payment permitted by Section 7.07; and
(e) any Affiliate who is a natural person may serve as an employee or director of any Borrower and receive reasonable compensation for his services in such capacity.
SECTION 7.09 Restrictive Agreements. The
Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Company
or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its Capital Stock or to make or repay
loans or advances to the Company or any other Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary; except:
(i) restrictions and conditions imposed by law or by this Agreement;
(ii) restrictions and conditions existing on the Second Restatement Effective Date set forth on Schedule 7.09 and in the documentation governing any Permitted Refinancing thereof (but
shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition);
(iii) customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale; provided that such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder;
(iv) (with respect to clause (a) above) (x) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and (y) customary provisions in leases and other contracts restricting the assignment thereof; and
(v) (with respect to clause (a) above) provisions in any lease or lease agreement, or any restrictions or conditions imposed by any landlord, prohibiting or restricting the granting,
creation or incurrence of any liens on any premises leased by the Company or any of its Subsidiaries.
SECTION 7.10 Swap Agreements. The Company will
not, and will not permit any of its Subsidiaries to, enter into any Swap Agreement, other than Swap Agreements entered into in the ordinary course of business to hedge or mitigate risks to which the Company or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities.
SECTION 7.11 Financial Covenants.
(a) Consolidated Leverage Ratio. The Company will not permit the Consolidated Leverage Ratio to exceed (i) 2.50
to 1.00, as of the end of each Reference Period ending on or nearest to March 31, June 30 and December 31 of any fiscal year and (ii) 3.25 to 1.00, as of the end of the Reference Periods ending on or nearest to September 30, 2019, September 30,
2020, September 30, 2021, September 30, 2022 and September 30, 2023 (such required level of Consolidated Leverage Ratio from time to time, the “Required Ratio”); provided that, the Required Ratios set forth above shall be temporarily
increased by the Applicable Increase upon and following the consummation of a Material Acquisition (it being understood, for the avoidance of doubt, that (i) in no event shall the Required Ratio for any Reference Period ending on or nearest to
September 30 of any fiscal year exceed 4.00 to 1.00 and (ii) that no more than one such Applicable Increase shall be in effect at any time).
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(b) Consolidated Fixed Charge Ratio. The Company will not permit the Consolidated Fixed Charge Coverage Ratio as
at the last day of any fiscal quarter of the Company to be less than 1.50 to 1.00.
SECTION 7.12 Sale-Leasebacks. The Company will
not, and will not permit any of its Subsidiaries to, enter into any arrangement with any Person providing for the leasing by the Company or any Subsidiary of real or personal property which has been or is to be sold or transferred by the Company or
such Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of the Company or such Subsidiary (a “Sale/Leaseback Transaction”),
except for Sale/Leaseback Transactions by the Company and its Subsidiaries with an aggregate sales price not exceeding $40,000,000.
SECTION 7.13 Modifications of Organizational
Documents. The Company will not, and will not permit any of its Subsidiaries to, consent to any modification, supplement or waiver of any of the provisions of the charter, by-laws or other organizational documents of the Company or any of
its Subsidiaries that could reasonably be expected to be materially adverse to the interests of the Lenders, in each case, without the prior consent of the Required Lenders (or the Administrative Agent, with the approval of the Required Lenders); provided
that the foregoing shall not apply to any modification of the charter, by-laws or other organizational documents of any Subsidiary effected solely in connection with the liquidation or dissolution thereof permitted by Section 7.03.
SECTION 7.14 Use of Proceeds and Letters of Credit.
The Company and each Subsidiary Borrower will not use, and, to the knowledge of the Company and each Subsidiary Borrower, the respective directors, officers, employees and agents of the Company and its Subsidiaries shall not use, the proceeds of
any Loan or Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or (b) for the purpose of
funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country.
ARTICLE VIII
EVENTS OF DEFAULT
EVENTS OF DEFAULT
If any of the following events (“Events of Default”) shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement or under any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Company or any of its Subsidiaries in or in connection with this Agreement or any other Loan Document or
any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any
such amendment, modification or waiver, shall prove to have been incorrect when made or deemed made in any material respect;
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(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 6.02, 6.03 (with respect to the existence of any Borrower) or 6.09 or in
Article VII or any of its respective obligations contained in Section 4.01 or 4.02 of the Security Agreement;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this
Article) or any other Loan Document and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Company (given at the request of any Lender);
(f) the Company or any of its Subsidiaries 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;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of
notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Company or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Company or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $15,000,000 (not covered by insurance where the carrier has accepted responsibility) shall be
rendered against the Company or any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;
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(l) an ERISA Event shall have occurred that when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) (i) the Liens created by the Security Documents shall at any time not constitute a valid and perfected Lien on the collateral intended to be covered thereby (to the extent
perfection by filing, registration, recordation or possession is required herein or therein) in favor of the Administrative Agent, free and clear of all other Liens (other than Liens permitted under Section 7.02 or under the respective Security
Documents), or, except for expiration in accordance with its terms, any of the Security Documents shall for whatever reason be terminated or cease to be in full force and effect, or the enforceability thereof shall be contested by any Loan Party, (ii) at any time after the execution and delivery thereof, the Guarantee of the Guaranteed Obligations (the “Guaranty”), for any reason other than the satisfaction in full of all Guaranteed Obligations,
shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void, or any Loan Party shall contest the validity, enforceability, perfection or priority of the Guaranty, any Loan Document,
or any Lien granted thereunder in writing or deny in writing that it has any further liability, including with respect to future advances by the Lenders, under any Loan Document to which it is a party, or (iii)
any Loan Document shall fail to be in full force and effect or to give the Administrative Agent and/or the Lenders the security interests, liens, rights, powers, priority and privileges purported to be created thereby (except as such
documents may be terminated or no longer in force and effect in accordance with the terms thereof, other than those indemnities and provisions which by their terms shall survive) or any Lien shall fail to be a first priority, perfected Lien on a
material portion of the collateral;
then, and in every such event (other than any event with respect to any Loan Party described in clause (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any Loan Party described in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers.
ARTICLE IX
THE ADMINISTRATIVE AGENT
THE ADMINISTRATIVE AGENT
SECTION 9.01 Appointment and Authorization of
Agents.
Each of the Lenders and the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto.
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The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as
if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances provided in Section 10.02), and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of
its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to
the Administrative Agent by the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth
in Article V or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine and to have been signed (including by Electronic Signature)
or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative
Agent may consult with legal counsel (who may be counsel for a Borrower), 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.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub agents appointed by the
Administrative Agent. The Administrative Agent and any such sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply
to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
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Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Lenders, appoint a
successor Administrative Agent which shall be a Lender with an office in New York, New York or an Affiliate of a Lender. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a
successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section
10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.
Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.
Notwithstanding anything herein to the contrary, the Joint Bookrunners, the Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents
named on the cover page of this Agreement and the Arrangers (as defined in the First Amendment) shall not have any duties or
liabilities under this Agreement, except in their capacity, if any, as Lenders.
SECTION 9.02 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Company 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 Loans, the Letters of Credit, 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 Loans, the Letters of Credit, the Commitments and this Agreement,
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(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset
Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a)
of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and 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 the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Company or any other Loan Party, that the Administrative Agent is not a fiduciary
with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the
reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
ARTICLE X
MISCELLANEOUS
MISCELLANEOUS
SECTION 10.01 Notices.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) of this Section), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopy, (i) if to the Company, any Subsidiary Borrower, the Administrative Agent, or any Issuing Lender, as set forth in Schedule 10.01; and (ii) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative
Questionnaire.
(b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or a Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval
of such procedures may be limited to particular notices or communications.
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(c) Change of Address, Etc. Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02 Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative Agent, any Issuing Lender
or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Lenders and the Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by a Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan, issuance of a Letter of Credit or creation of an Acceptance shall
not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Lender may have had notice or knowledge of such Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Loan Parties and the Required Lenders (or, in the case of any such waiver, amendment or modification relating to Letters of Credit or Acceptances, the Required Revolving Credit
Lenders) or by the Loan Parties and the Administrative Agent with the consent of the Required Lenders (or the Required Revolving Credit Lenders, as applicable); provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written consent of each Lender directly adversely affected thereby;
(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
directly adversely affected thereby;
(iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly adversely affected thereby;
(iv) change Section 2.20(b), (c) or (d) or Section 5.09 of the Security Agreement in a manner that would alter the pro rata sharing of payments required thereby, without the written
consent of each Lender or other Secured Party affected thereby;
(v) change any of the provisions of this Section or the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender affected thereby; or
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(vi) release all or substantially all of the Guarantors from their guarantee obligations under Article III (except as otherwise provided therein) or all or substantially all of the
collateral, in each case without the written consent of each Lender;
and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or any Issuing Lender
hereunder without the prior written consent of the Administrative Agent or such Issuing Lender, as the case may be.
Except as otherwise provided in this Section with respect to this Agreement, the Administrative Agent may, with the prior consent of the Required Lenders
(but not otherwise), consent to any modification, supplement or waiver under any of the Security Documents; provided that without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in the
Security Documents) release all or substantially all of the collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, except that no such consent shall be required, and the
Administrative Agent is hereby authorized, to release any Lien covering property (and to release any such Guarantor) that is the subject of either a disposition of property or a release of a Guarantor permitted hereunder or a disposition or release
to which the Required Lenders have consented.
SECTION 10.03 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company shall pay (i) all reasonable out of pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out of pocket expenses incurred by any Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of Credit, creation of any Acceptance or any demand for payment thereunder, (iii) all out of pocket expenses
incurred by the Administrative Agent, any Issuing Lender or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Lender or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section, or in connection with the Loans made, Letters of Credit issued or Acceptances created hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect thereof and (iv) and all reasonable costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording or perfection
of any security interest contemplated by any Security Document or any other document referred to therein.
(b) Indemnification by the Company. The Company shall indemnify the Administrative Agent, each Issuing Lender and
each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, penalties and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or
the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan, Letter of Credit or Acceptance or the use of the proceeds therefrom (including any refusal by any Issuing Lender to honor a demand for payment under
a Letter of Credit or an Acceptance if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit or such Acceptance), (iii) any Environmental Liability related in any way to the Company or
any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.
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(c) Reimbursement by Lenders. To the extent that the Company fails to pay any amount required to be paid by it to
the Administrative Agent or any Issuing Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent or such Issuing Lender, as the case may be, such Lender’s Applicable Percentage (determined
as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or such Issuing Lender in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable law, no Borrower shall assert,
and each Borrower hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or Acceptance or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable promptly after written demand therefor.
(f) For the avoidance of doubt, any indemnification relating to Taxes, other than Taxes resulting from any non-Tax claim, shall be covered by Section 2.19 and shall not be covered by this Section 10.03.
SECTION 10.04 Successors and Assigns;
Participations.
(a) Assignments Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Lender that issues any Letter of Credit or creates any Acceptance), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Lender that issues any Letter of Credit
or creates any Acceptance), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Lenders and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees, other than a natural person, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
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(A) the Company; provided that no consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default
has occurred and is continuing, any other Person; provided, further, that the Company shall be deemed to have consented to any such assignment unless the Company shall object thereto by written notice to the Administrative Agent
within five Business Days after having received notice thereof;
(B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan or a Term Loan A-1 to a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) (in the case of assignments of the Revolving Credit Commitment and Revolving Credit Loans) each Issuing Lender.
(ii) Certain Conditions to Assignments. Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitments
or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000, or, in the case of an assignment of Term Loans, Term Loans A-1 and Incremental Term Loans, $1,000,000,
unless each of the Company and the Administrative Agent otherwise consent; provided that no such consent of the Company shall be required if an Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Approved Funds, if any;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that
this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) (1) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 and
(2) the assigning Lender shall have paid in full any amounts owing by it to the Administrative Agent; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts
to whom all syndicate-level information (which may contain material non-public information about the Company and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
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(iii) Effectiveness of Assignments. Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.17, 2.18, 2.19 and
10.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) Maintenance of Register. The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated
interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent, the Issuing
Lenders and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection by the Borrowers, any Issuing Lender and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Acceptance of Assignments by Administrative Agent. Upon its receipt of a duly completed
Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Participations.
(i) Participations Generally. Any Lender may, without the consent of the Borrowers, the Administrative Agent or
any Issuing Lender, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrowers, the Administrative Agent, the Issuing Lenders and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement and the other Loan Documents. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to
approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section 10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.17, 2.18 and 2.19 (subject to the requirements and limitations of such Sections, including the requirement to provide the forms and certificates pursuant to Section 2.19(e)) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to
be subject to Section 2.20(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest) of each Participant’s interest in the Loans, LC Disbursements or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Loans, LC Disbursements or other obligations under this Agreement),
except to the extent that such disclosure is necessary to establish that such Loan, LC Disbursement or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant
Register shall be conclusive absent manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this
Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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(ii) Limitations on Rights of Participants. A Participant shall not be entitled to receive any greater payment
under Section 2.17 or 2.19 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written
consent (such consent not to be unreasonably withheld, it being understood that the Company may withhold its consent if such participation could be reasonably expected to result in any increase in any Borrower’s payment obligations under Section
2.17 or 2.19). No Participant shall be entitled to the benefits of Section 2.19 unless such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.19(e) as though it were a Lender.
(d) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Notwithstanding anything herein to the contrary, no assignment made pursuant to this Section 10.04 shall be made to
any Loan Party or any Loan Party’s Affiliates or Subsidiaries or to a natural person.
SECTION 10.05 Survival. All covenants,
agreements, representations and warranties made by the Borrowers herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the making of any Loans, issuance of any Letters of Credit and creation of any Acceptances, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, any Issuing Lender or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit or any Acceptance is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.17, 2.18, 2.19, 3.03 and 10.03 and Article IX shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Letters of Credit, Acceptances and the Commitments or the termination of this Agreement or any provision hereof.
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SECTION 10.06 Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the
Administrative 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 5.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures
of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of (x) this Agreement by email or telecopy, (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of
doubt, any notice delivered pursuant to Section 10.01), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an
“Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement., such other Loan Document or such Ancillary Document, as applicable. The words “execution,”
“signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, electronic deliveries or the keeping of
records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures
in any form or format without its prior written consent and pursuant to procedures approved by it (it being understood that the Administrative Agent hereby consents to the use of DocuSign for purposes of providing Electronic Signatures to any
Loan Document or any Ancillary Document to the extent the Loans Parties comply with the verification measures requested by the Administrative Agent in accordance with the Administrative Agent’s internal policies and procedures as communicated
to the Company from time to time); provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled
to rely, so long as such reliance is not the product of the gross negligence or willful misconduct of such Person, on such Electronic Signature purportedly given by or on behalf of the Borrower or any other Loan Party without further
verification thereof and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be reasonably promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the
Borrower and each other Loan Party hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative
Agent, the Lenders, and the Borrower and the other Loan Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means and/or any electronic images of this Agreement, any other Loan Document and/or any
Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan
Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iii)
waives any claim against the Administrative Agent, any Joint Lead Arranger, any Joint Bookrunner, the Syndication Agent, any Co-Documentation Agent, any Arranger (as defined in the First Amendment), any Issuing Lender and any Lender, and any
Related Party of any of the foregoing Persons, for any liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other
electronic means that reproduces an image of an actual executed signature page, including any liabilities arising as a result of the failure of the Borrower and/or any other Loan Party to use any available security measures in connection with
the execution, delivery or transmission of any Electronic Signature, so long as such reliance or use is not the product of the gross negligence or willful misconduct of such Person.
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SECTION 10.07 Severability. Any provision of
this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 10.08 Right of Setoff. If an Event of
Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of any Borrower against any of and all the obligations of any Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured; provided that if any Defaulting Lender shall
exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by
such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Lenders and the Lenders and (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of set off. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09 Governing Law; Jurisdiction; Consent
to Service of Process.
(a) Governing Law. This Agreement shall be construed in accordance with and governed by the law of the State of
New York.
(b) Submission to Jurisdiction. Each Loan Party hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New
York sitting in the Borough of Manhattan), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement and the other Loan Documents, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any
other Loan Document will prevent the Administrative Agent, any Issuing Lender or any Lender from bringing any action to enforce any award or judgment or exercise any right under the Security Documents or against any Collateral or any other property
of any Loan Party in any other forum in which jurisdiction can be established.
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(c) Waiver of Venue. Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph
(b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 10.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 10.10 WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11 Headings. Article and Section
headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 10.12 Confidentiality. Each of the
Administrative Agent, the Issuing Lenders and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any governmental or regulatory authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (x) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (y) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Company and its Subsidiaries and their respective obligations, (g) with the consent of the Company, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender (i) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of identification numbers with respect to the
credit facilities provided for herein or (j) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Issuing Lender or
any Lender on a nonconfidential basis from a source other than a Loan Party. For the purposes of this Section, “Information” means all information received from any Loan Party relating to the Company and its Subsidiaries and their business,
other than any such information that is available to the Administrative Agent, any Issuing Lender or any Lender on a nonconfidential basis prior to disclosure by a Loan Party and other than information pertaining to this Agreement routinely
provided by arrangers to data service providers, including league table providers, that serve the lending industry; provided that in the case of information received from any Loan Party after the Second Restatement Effective Date, such
information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 10.12 shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
100
EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED IN THIS SECTION) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE BORROWERS AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWERS OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWERS AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWERS
AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW,
INCLUDING FEDERAL AND STATE SECURITIES LAWS.
SECTION 10.13 USA PATRIOT Act. Each Lender
hereby notifies the BorrowersLoan Parties that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and the Beneficial Ownership Regulation, such Lender may be required to obtain, verify and record information that identifies the BorrowersLoan Parties, which information includes the name and
address of each BorrowerLoan Party and other information that
will allow such Lender to identify the BorrowersLoan Parties in
accordance with said Act and the Beneficial Ownership Regulation.
SECTION 10.14 Authorization of Company. Each
Subsidiary Borrower hereby authorizes the Company to give on behalf of such Subsidiary Borrower all notices, consents and other communications that may be given by such Subsidiary Borrower under or in connection with this Agreement or any other
Loan Document, and to receive on behalf of such Subsidiary Borrower all notices, consents and other communications that may be given to such Subsidiary Borrower under or in connection with this Agreement or any other Loan Document (in each case,
irrespective of whether or not such notice, consent or other communication is expressly provided elsewhere in this Agreement to be given or received by the Company on behalf of such Subsidiary Borrower). Such notices, consents and other
communications may include Borrowing Requests, notices as to continuations, conversions and prepayments of Loans, notices and demands in connection with Defaults, and notices and demands in connection with the exercise by the Administrative Agent
or any Lender of remedies. Such notices, consents and other communications may be given by or to the Company in its own name or in the name of the applicable Subsidiary Borrower. The authority given by each Subsidiary Borrower in this Section is
coupled with an interest and is irrevocable until all the Revolving Credit Commitments and all Letters of Credit and Acceptances have expired or been terminated and all the obligations of such Subsidiary Borrower under this Agreement and the other
Loan Documents have been paid in full.
101
SECTION 10.15 No Advisory or Fiduciary
Responsibility. In connection with all aspects of each transaction contemplated hereby, each of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) the credit facility provided for hereunder
and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Loan Parties
and their Affiliates, on the one hand, and the Lenders, on the other hand, and the Loan Parties are capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by
the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (b) in connection with the process leading to such transaction, each of the Lenders each is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for any Loan Party or any of their Affiliates, stockholders, creditors or employees or any other Person; (c) no Lender has assumed or will assume an advisory, agency or fiduciary responsibility in favor of any
Loan Party with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the any
Lender has advised or is currently advising any Loan Party or any of its Affiliates on other matters) and no Lender has any obligation to any Loan Party or any of their Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; (d) the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their
Affiliates, and no Lender has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (e) the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to
the extent it has deemed appropriate. Each Loan Party agrees that it will not assert any claim against any Lender based on an alleged breach of fiduciary duty by such Lender in connection with this Agreement and the Transactions contemplated
hereby.
SECTION 10.16 Acknowledgement and Consent to
Bail-In of EEAAffected Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEAAffected Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of an EEAthe applicable Resolution Authority and agrees and consents
to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEAthe applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEAAffected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
102
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEAAffected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it,
and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEAthe applicable Resolution Authority.
SECTION 10.17 No Novation. The terms and conditions of the Existing
Credit Agreement are amended as set forth herein, and restated in their entirety and superseded by, this Agreement. Nothing in this Agreement shall be deemed to work a novation of any of the obligations under the Existing Credit Agreement.
Notwithstanding any provision of this Agreement or any other document or instrument executed in connection herewith, the execution and delivery of this Agreement and the incurrence of obligations hereunder shall be in substitution for, but not in
payment of, the obligations owed by the Borrowers and the Guarantors under the Existing Credit Agreement. From and after the date hereof, each reference to the “Credit Agreement” or other reference originally applicable to the Existing Credit
Agreement contained in any document executed and delivered in connection therewith shall be a reference to this Agreement, as amended, supplemented, restated or otherwise modified from time to time.
SECTION 10.18 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a
guarantee or otherwise, for Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution
power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special
Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of
New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support)
from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property)
were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under
the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under
the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
[Signature pages follow]
103
Exhibit B
[Attached]
EXHIBIT B-3
[Form of Term Loan A-1 Note]
PROMISSORY NOTE
|
$[_________]
|
[________], 20[__]
|
|
|
New York, New York
|
FOR VALUE RECEIVED, 0-000-XXXXXXX.XXX, INC., a Delaware corporation (the “Company”), hereby promises to pay to [NAME OF LENDER] (the “Lender”), at the offices of
JPMorgan Chase Bank, N.A., as Administrative Agent under the Credit Agreement referred to below, at 00 Xxxxx Xxxxxxxx, XX XX0, Xxxxxxx, XX 00000-0000, or such other office as shall be notified to the Company from time to time, the principal sum of
[DOLLAR AMOUNT] DOLLARS ($[_________]) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Term Loans A-1 made by the Lender to the Company under the Credit Agreement), in lawful money of the United States of America
and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Term Loan A-1, at such office, in like money and funds, for the period
commencing on the date of such Term Loan A-1 until such Term Loan A-1 shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each Term Loan A-1 made by the Lender to the Company, and each payment made on account
of the principal thereof, shall be recorded by the Lender on its books and, prior to any transfer of this Promissory Note, endorsed by the Lender on the schedule attached hereto or any continuation thereof; provided, that the failure of the
Lender to make any such recordation or endorsement shall not affect the obligations of the Company to make a payment when due of any amount owing under the Credit Agreement or hereunder in respect of the Term Loans A-1 made by the Lender.
This Promissory Note evidences Term Loans A-1 made by the Lender under the Second Amended and Restated Credit Agreement, dated as of May 31, 2019 (as amended by the First
Amendment, dated as of August 20, 2020, and as further amended, supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”), among 0-000-XXXXXXX.XXX, INC., the Subsidiary Borrowers party thereto, the Guarantors
party thereto, the Lenders party thereto (including the Lender) and JPMorgan Chase Bank, N.A., as Administrative Agent. Terms used but not defined in this Promissory Note have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this Promissory Note upon the occurrence of certain events and for prepayments of Term Loans A-1 upon the
terms and conditions specified therein.
Except as permitted by Section 10.04 of the Credit Agreement, this Promissory Note may not be assigned by the Lender to any other Person.
This Promissory Note shall be construed in accordance with and governed by the law of the State of New York.
| 0-000-XXXXXXX.XXX, INC. |
||
| By |
_________________________ |
|
| Name: |
||
| Title: |
||
SCHEDULE OF TERM LOANS A-1
This Promissory Note evidences Term Loans A-1 made, continued or converted under the within‑described Credit Agreement to the Company, on the dates, in the principal amounts,
of the Types, bearing interest at the rates and having Interest Periods (if applicable) of the durations set forth below and pursuant to the Credit Agreement, subject to the continuations, conversions and payments and prepayments of principal set
forth below:
|
Date
|
Principal
Amount of
Loan
|
Type of
Loan
|
Interest
Rate
|
Duration of
Interest Period
(if any)
|
Amount Paid,
Prepaid,
Continued or
Converted
|
Notation
Made by
|
